HE ST Rinalini EVI Emorial Ational OOT Ourt Ompetition: Versus

TEAM: BLCRL28
THE 1ST MRINALINI DEVI MEMORIAL NATIONAL MOOT COURT COMPETITION-2017
BEFORE THE HONOURABLE HIGH COURT OF BANGLA, INDICA
WRIT PETITION NO (Crl): 124 /2015
In The Matter of:
PEOPLE’S CONSCIENCE…………………………………………………....Petitioner
Versus
RANA THR. JUVENILE JUSTICE BOARD AND ORS………………....Respondent
MEMORANDUM ON BEHALF OF THE PETITIONERS
COUNSEL APPEARING ON BEHALF OF THE PETITIONERS

MRINALINI DEVI MEMORIAL NATIONAL MOOT COURT COMPETITION-2017
TABLE OF CONTENTS
1. LISTOF ABBREVIATIONS 04
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2. INDEX OF AUTHORITIES
a. Cases Referred …………………………………………………..…. 06

b. Books ….…….....……………………………………….………..... 08
c. Legislation and Conventions……………………………….………...08
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3. STATEMENT OF JURISDICTION 09
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4. STATEMENT OF FACTS 10
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5. ISSUES FOR CONSIDERATION 11
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6. SUMMARY OF ARGUMENTS 12
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7. WRITTEN SUBMISSIONS 13
1.WHETHER THE WRIT PETITION FILED IS MAINTAINABLE UNDER ARTICLE
226 OF THE CONSTITUTION OF INDICA?
1.1 alternative remedies - no bar
1.2 Application for impleadment to prosecute
1.3 Constutionality of blanket ban on criminal courts to try juveniles
1.4 Interpretation of section 28 of the act JJ ACT
2 | MEMORANDUM ON BEHALF OF THE PETITIONERS

2. WHETHER OR NOT THE CONSTITUTIONAL SANCTION OF AN ENACTMENT
HAVE AN OVERRIDING EFFECT TO AN INTERNATIONAL CONVENTION AND/OR
STATUTE, OF WHICH INDICA IS A SIGNATORY?
2.1 International concept of age of criminal responsibility (Beijing rules, CRC,

Hawana rules)
3. WHETHER THE JUVENILITY WILL DEPEND UPON THE NATURE OF THE
OFFENCE COMMITTED AS IN THE EXISTING SCENARIO MOST OF THE
JUVENILES ARE ENGAGED IN HORRENDOUS AND HEINOUS CRIMES LIKE
RAPE, MURDER AND DRUG – PEDDLING, ETC.?
3.1 Interpretation of sections 2(p), 2(k), 2(l) of the JJ act 2000.
3.2 Interpretation of section 82 and 83 of Indican Penal code and extension to

juveniles from 12-18.
3.3 Article 14
3.4 Judicial waiver discretion of Juvenile Courts
3.5 Age , Mental maturity and interpretation V. unconstitutionality
4. WHETHER OSSIFICATION TEST SHALL BE PREFERRED OVER

MATRICULATION CERTIFICATE AS AN APPROPRIATE METHOD TO DETERMINE
THE AGE OF THE JUVENILE?
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8. PRAYER FOR RELIEF 34
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LIST OF ABBREVIATIONS
TERMS MEANING
Cr.P.C Code of Criminal Procedure
IEA Indian Evidence Act
& And
AIR All India Reporter
SC Supreme Court
Cri LJ Criminal Law Journal
Sec. Section
FIR First Information Report
Vol. Volume
HC High Court
Hon’ble Honourable
Cri LJ Criminal Law Journal
Ors. Others
Anr. Another
SCR Supreme Court Reporter
SCC Supreme Court Cases
EDN. Edition

Ltd. Limited
vs. Versus
r/w read with
u/s Under section
Govt. Government
i.e. that is
ACR Allahabad Criminal Rulings
UOI Union Of India
BLJR Bihar Law Journal Reports
CTC Current Tamil Nadu Cases
LTD. Limited
KLT Kerala Law Times
ALLCC Allahabad Criminal cases
Thr. through

INDEX OF AUTHORITIES
CASES REFERRED:
1. Comptroller and Auditor General of India v. K.S.Jagannathan (1986) 2 SCC 679.
2. Bandhua Mukti Morcha v. Union of India & Ors. AIR 1984 SC 802
3. LIC of India v. Asha Goel (2001) 2 SCC 160: AIR 2001 SC 549.
4. State of Uttaranchal v. Bhalwant Singh Chaufal & Ors. AIR 2010 SC 2550
5. Harjinder Singh v. Punjab State Warehausing Corpn. (2010) 3 SCC 192: AIR 2010
SC 1116
6. Ram & Shyam Co. v. State of Haryana (1985) 3 SCC 267: AIR 1985 SC 1147
7. State v Gujarat Ambuja Cement Ltd. (2005) 6 SCC 499
8. Harbanslal v Indian Oil Corp. (2003) 2 SCC 107
9. Bandhua Mukti Morcha v Union of India (UOI) and Ors. AIR 1984 SC 802
10. Manne Subbarao v. State of A.P (1980) 3 SCC 140
11. Shiv Kumar v. Hukam Chand 1999(3)ACR2101(SC)
12. Domestic Working Women's Forum v. Union of India (1995) 1 SCC 14
13. J.K. International v. State (Govt. of NCT of Delhi)(2001) 3 SCC 462
14. All India Democratic Women's Assn. v. State 1998 Cri LJ 2629 (Mad)
15. Birendra Kumar vs. State of Jharkhand and Ors
16. Awadhesh Singh Son of Late Hardeo Singh vs. The State of Bihar
2009(57)BLJR2209

17. Sheonandan Paswan vs State of Bihar and Ors.1987(1)SCC288
18. Mukesh and Anr vs. State for NCT of Delhi
19. West Bengal Vs. Kesoram Industries Ltd 2004 (10) SCC 201
20. Tractor Export Vs. Tarapore & Co AIR 1970 SC 1168,
21. T. Rajkumar and Ors. Vs. Union of India, Ministry of Finance, Department of
Revenue and Ors 2016(3)CTC681
22. Jolly George Varghese and Anr. vs. The Bank of Cochin AIR 1980 SC 470
23. Ram Jethmalani Vs. Union of India 2011 (8) SCC 1
24. Xavier v. Canara Bank Ltd 1969 KLT 927
25. T v United Kingdom, V v United Kingdom (1999) 30 EHRR 121),
26. Smt. Leena Katiyar vs. State of Uttar Pradesh 2015 (89) ALLCC 556
27. Arnit Das vs State of Bihar (2000) 5 SCC 488
28. Pawan vs State of Uttaranchal (2009) 15 SCC 259
29. Om Prakash vs State of Rajasthan (2012) 5 SCC 201
30. Chauhan alias Raj Nath v. State of Assam (2001) 5 SCC 714
31. Mor Pal vs State, 198 (2013) DLT 487
32. Gauri Shankar v. Union of India AIR 1995 SC 55 at 58 : (1994)6 SCC 349
33. Om Narain v. Nagar Palika AIR 1993 SC 144; See also Secretary v. W.B.R.S.A AIR
1992 SC 1203
34. ChiranjithLal v. Union of India AIR 1951 SC 41; See also State of Bombay v. F.N.
Balsara AIR 1951 SC 318; KedarNath v. State of West Bengal AIR 1953 SC 404.
35. Abdul Rehman v. Pinto AIR 1951 (Hyd) 11

36. Jagit Singh v. State AIR 1954 (Hyd) 28
37. Bhagat Ram v. State of Himachal Pradesh AIR 1983 SC 454, 460: (1983) 2 SCC 442
38. Mohammed Usman v. State of A.P. AIR 1971 SC 1801
39. KedarNath v. State of W.B. AIR 1954 SCR 30;
40. Ram Sarup v. UOI AIR 1965 SC 247 (252)
BOOKS REFERRED:
1. Basu D.D., Constitution of India, 14th Ed. 2009, LexisNexis, Butterworths
Wadhwa Publication, Nagpur.
2. Jain M.P., Indian Constitutional Law, 6th Ed. 2011, LexisNexis Butterworths Wadhwa
Nagpur
3. Padmaja K., Juvenile Delinquency, 1st Ed. 2001, The Icfai Universiry Press.
4. Banerjee B.P. J. Writ Remedies, 3rd Ed. 2004, Wadhwa and Co. Nagpur.
5. Madhabhushi Sridhar., Is it impossible to stop rape. Asian law house Hyderabad.
LEGISLATIONS REFERRED:
1. The Constitution of Indica, 1949
2. Code of Criminal Procedure, 1973
3. Juvenile Justice (Care and Protection of Children) Act 2000
4. Indican penal code 1860
CONVENTIONS
1. United Nations Convention On The Rights Of A Child, 1989.
2. United Nations Standard Minimum Rules For The Administration Of Juvenile Justice,
1985 (Beijing Rules).
3. United Nations Rules For The Protection Of Juveniles Deprived Of Their Liberty,
1990.

STATEMENT OF JURISDICTION
The Hon’ble High court is vested with the jurisdiction under Article 226 & Article 227 of the
Indica Constitution. The petitioner herein raises a substantial question of law of general
importance and this court has admitted this matter and framed the issues. Hence this Hon’ble
court has power to adjudicate on the same.
All of which is respectfully submitted
By:
Counsel for the Petitioners
Place: Bangla, Indica.

STATEMENT OF FACTS
[A]EVENTS THAT UNFOLDED THE COMMISSION OF THE ALLEGED CRIME:

On the first day of March 2015, a girl aged 19 years was brutally sexually assaulted by 5
persons in the Golpur district of state Bangla. Thereafter she was bathed in country liquor and
set ablaze. The girl succumbed to her wounds on the 3rd March 2015 after she had received
fatal burns of third degree. Based on her dying declaration the 5 persons were arrested and
prosecuted before the court. One of the accused named Rana was below the age of 18 years
and was still a juvenile and tried in the juvenile justice board.
The other four accused were found guilty of the offences committed under section 376-D and
Section 302 of the IPC 1860. The learned trial court sentenced them to death. The appeal was
filed against the aforesaid conviction and the sentence imposed was dismissed by the Hon’ble
High court of Bangla and which had confirmed their death.
[B] BACKGROUND:
People’s Conscience is a Non- profit organisation working for socio- legal rights of the
women and children in the geographical areas of Indica, in demand for natural justice. The
organisation had filed an application before the JJ board for their impleadment to prosecute
the juvenile along with the prosecutor. The organisation also claimed that the juvenile is not
entitled for benefits under the JJ act if there was a proper interpretation of the act.
[C] RELEVANT FACTS:

The board expressed its inability to decide the same issue after an elaborate hearing and
directed the organisation to seek an authoritative pronouncement from the Hon’ble High
Court. Accordingly a writ petition was instituted before the High Court which was registered
as WP (Crl) No. 124 of 2015 seeking the reliefs. For which this Hon’ble court has framed
three issues.

ISSUES FOR CONSIDERATION
1. Whether the impleadment of private parties and jurisdiction of regular criminal courts
for juveniles are tenable?
2. Whether or not the Constitutional sanction of an enactment have an overriding effect
to an International convention and/or statute, of which Indica is a signatory?
3. Whether the juvenility will depend upon the nature of the offence committed as in the
existing scenario most of the juveniles are engaged in horrendous and heinous crimes
like rape, murder and drug – peddling, etc.?
4. Whether Ossification test shall be preferred over Matriculation Certificate as an
appropriate method to determine the age of a juvenile.

SUMMARY OF ARGUMENTS
1. Whether the impleadment of private parties and jurisdiction of regular criminal

courts for juveniles are tenable?
The petition filed under Article 226 of the Constitution is maintainable as the present case
involves a substantial question of law of general importance and there has been a violation of
fundamental rights under Article 21 of the Constitution.
2. Whether or not the Constitutional sanction of an enactment have an overriding effect
to an International convention and/or statute, of which Indica is a signatory?
The petitioners humble submit before this Hon’ble Court that the Constitutional Sanction of
an Act should be given more importance and that the same should have an overriding effect
to an International Convention.
existing scenario most of the juveniles are engaged in horrendous and heinous crimes
like rape, murder and drug – peddling, etc.?
The petitioners humbly submits that the court must not prima facie consider the age of the
juvenile and try him separately as the test lacks the intelligible differentia. Therefore the
juvenility must be tested based on the crime committed rather than his age as the mental
maturity might vary from one juvenile to the other and not based on the age. Appropriate
cases the court must exercise the judicial waiver and the juveniles must be tried along with
the adult offenders.
4. Whether Ossification test shall be preferred over Matriculation Certificate as an

appropriate method to determine the age of the Juvenile?
It is humbly submitted that on the event of doubt regarding age of the person in question
Ossification test results can be taken as a proof to determine the age and to put an end to the
doubts in place.

WRITTEN SUBMISSIONS
1. Whether the impleadment of private parties and jurisdiction of regular criminal courts
for juveniles are tenable?
It is humbly submitted that this Hon'ble High Court has the jurisdiction to entertain a Writ
under Art. 226 of the Constitution of Indica. The scope of PIL has been widening since
Bandhua Mukti Morcha v. Union of India1 and it was held that the jurisdiction of High courts
under Art. 226 can be exercised for entertaining PIL and the same is wider in scope for it can
be exercised to enforce the legal rights of the poor and disadvantaged section of the society
Art.226 can issue ‘directions, orders or writs’ so as to enable the High Courts to reach
injustice wherever it is found and to mould the reliefs to meet the peculiar and complicated
requirement of this country2. The Constitution does not place any fetters on the exercise of
the extraordinary writ jurisdiction. It is left to the discretion of High Court3. This jurisdiction
has been created and carved out by the judicial creativity and craftsmanship4.Art.227 gives
High Court the power of superintendence over all courts and tribunals throughout the
territories interrelations to which it exercises jurisdiction. While exercising power under
Art.226 and 227 of the constitution, the High Court is duty bound to keep in mind that social
welfare legislations are required to be interpreted keeping in view the goals set out in the
preamble of the constitution and the provision contained in Part IV.5
The rule of locus standi was relaxed in Bar Council of Maharashtra v. M.V. Dabholkar6
wherein the court observed that public oriented litigations better fulfils the rule of law. In
JudgesTransfer case7, the seven members Bench of the Supreme Court held that any
member of the public having “sufficient interest” can approach the Court for enforcing
constitutional or legal rights of those who cannot go to Court because of their poverty or
1
Bandhua Mukti Morcha v. Union of India & Ors. AIR 1984 SC 802.
2
Comptroller and Auditor General of India v. K.S.Jagannathan (1986) 2 SCC 679.
3
LIC of India v. Asha Goel (2001) 2 SCC 160: AIR 2001 SC 549.
4
State of Uttaranchal v. Bhalwant Singh Chaufal & Ors. AIR 2010 SC 2550
5
Harjinder Singh v. Punjab State Warehausing Corpn. (2010) 3 SCC 192: AIR 2010 SC 1116
6
Bar Council of Maharashtra v. M.V. Dabholkar 1976 SCR 306, The Mumbai Kamgar Sabha, Bombay v.
Abdulbhai Faizullabhai and Ors. AIR 1976 SC 1455.
7
S.P Gupta v. Union Of India AIR 1982 SC 149

other disabilities. It is humbly submitted that, the petitioner have Locus standi as it is an
organisation fighting for the socio legal rights of women8
1.1.Alternative remedies - no bar
The rule which requires the exhaustion of alternative remedies is a rule of convenience and
discretion, a self-imposed restraint on the court, rather than a rule of law. It does not oust the
jurisdiction of the court.9 High Courts are conferred a very wide power in the matter of
issuing writs under Art. 226. Alternative remedy has nothing to do with the jurisdiction in
writs10. Court will entertain the writ if it comes to the conclusion that the petitioner seeks
enforcement of any of the fundamental rights, or there has been failure of natural justice, or
the order or proceeding is wholly without jurisdiction or the vires of an Act is challenged.11
It is humbly submitted that the existence of alternate remedy under Art. 32 is not a bar to file
a Writ Petition under Art.226 of the Constitution. The jurisdiction of the High Court under
Art.226 is much wider compared to the jurisdiction of the Supreme Court under Art.32
because the High Courts are required to exercise this jurisdiction not only for enforcement of
a fundamental right but also for enforcement of any legal right and there are many rights
conferred on the poor and the disadvantaged which are the creation of statute and, need to be
enforced as urgently and vigorously as fundamental rights.12
1.2.Application for impleadment to prosecute
The Counsels for the petitioners contend that there is ample scope in Cr.P.C for introducing
the concept of third-party intervention in criminal cases. This may be required when the
victim is not in a position to look after her own interests or is keen to see that the perpetrator
of the crime is brought to book. Third-party intervention can also be possible in situations
analogous to public interest litigation under constitutional law. In such cases public-spirited
pleaders can intervene, with the permission of the court, and take up prosecution.
The law as per Section 2413 lays down that a Public Prosecutor shall be appointed for
conducting prosecution, appeal or other proceeding on behalf of the Government, as the case
8
Para 5 moot proposition
9
Ram & Shyam Co. v. State of Haryana (1985) 3 SCC 267: AIR 1985 SC 1147
10
State v Gujarat Ambuja Cement Ltd. (2005) 6 SCC 499
11
Harbanslal v Indian Oil Corp. (2003) 2 SCC 107
12
Bandhua Mukti Morcha v Union of India (UOI) and Ors. AIR 1984 SC 802
13
Code of Criminal Procedure, 1973

may be. Section 301 states that the Public Prosecutor or the Assistant Public Prosecutor in
charge of a case may appear and plead without any written authority before any court in
which that case is under inquiry, trial or appeal.
It further states that if in any such case any private person instructs a pleader to prosecute any
person in any court, the pleader so instructed shall act under the directions of the Public
Prosecutor or the Assistant Public Prosecutor may with the permission of the court, submit
written arguments after the evidence is closed in the case
The Supreme Court in the case of Manne Subbarao v. State of A.P14 where the issue was
whether a third party, who is neither the complainant nor the first informant, can appeal to the
Supreme Court, against an order of acquittal by the High Court, if the State does not prefer an
appeal. The Court ruled that the criminal-justice system supports the view that a wrong done
to anyone is a wrong done to oneself.
Justice is outraged when a guilty person is allowed to get away unpunished. It held that
access to justice to every bona fide seeker is a democratic dimension of remedial
jurisprudence even as public interest litigation, class action and pro bono proceedings are
good in law. It has also been stated that the role of the advocate appointed by the third party
to the proceeding would be similar to a junior counsel15.
Another interpretative stand which the Petitioners wish to submit flows from the decision of
the Supreme Court of India in the case of Domestic Working Women's Forum v. Union of
India16 which gave parameters with respect to assisting victims of rape and complainants in
sexual assault cases. The Court said that it is important to have someone who is well
acquainted with the criminal-justice system to represent victims of the Crime.
The role of the victim's advocate would not only be to explain to the victim, the nature of the
proceedings, prepare her for the case and to assist her in the police station and in court, but
also to provide her with guidance as to how she might obtain help of a different nature. This
could be interpreted to mean, that an intervener be allowed, to assist the victim
14
Manne Subbarao v. State of A.P (1980) 3 SCC 140
15
Shiv Kumar v. Hukam Chand 1999(3)ACR2101(SC)
16
Domestic Working Women's Forum v. Union of India (1995) 1 SCC 14

The Supreme Court went a step further in J.K. International v. State (Govt. of NCT of
Delhi)17where an interpretation of Section 301 of the Cr.P.C was under scrutiny. In this case,
the accused had moved the High Court seeking quashing of the charges framed. The
petitioner, who was the complainant sought to intervene in the case. The Court ruled that a
reading of Section 301 makes it clear that the fact that the police have investigated the case,
based on the information given by the informant and filed a charge-sheet, on the basis of
which cognizance is taken, does not in any way mean that the informant is wiped out from
the scenario of the trial.
The Court referred to Section 301 and stated that in the case of a trial before a Court of
Session, one needs to read the said section with Section 225, which states that only a Public
Prosecutor is empowered to argue the case before the Court. Even in such a situation, a third
party is allowed to present written arguments to the court, albeit with the permission of the
court. Once such arguments are presented, the Supreme Court ruled that the Sessions Court
has a duty to consider the same before deciding the case. The Court then went on to interpret
Section 302 and stated that the power under Section 302 was much wider. It empowers the
Magistrate to permit a private person to carry on the prosecution. Hence, the Court stated that
a third party's role is not negated by Cr.P.C.
A plain reading of Section 301 reveals that though oral submissions before the court cannot
be independent of the Prosecutor, a pleader instructed by a private person can definitely file
written submissions before the court independent of the Public Prosecutor, if the court so
permits.
The High Court of Madras has also stated in the case of All India Democratic Women's
Assn. v. State18 stated that Section 301(2) Cr.P.C gives a third party a right to assist the
prosecution. The same has been also stated by the Court in the case of Birendra Kumar vs.
State of Jharkhand and Ors19 where it was held that counsel appearing on behalf of
informant/Petitioner, was permitted to file written argument, which should be considered at
time of final decision of case.
17
J.K. International v. State (Govt. of NCT of Delhi)17(2001) 3 SCC 462
18
All India Democratic Women's Assn. v. State 1998 Cri LJ 2629 (Mad)
19
Birendra Kumar vs. State of Jharkhand and Ors

The High Court of Bihar in the case of Awadhesh Singh Son of Late Hardeo Singh vs. The
State of Bihar20, referring to the provisions under Sections 301 and 302 of the Code of
Criminal Procedure considered the aspect of the locus standi for the purpose of considering
the question of permitting the deceased's father and found that in view of the ratio as
propounded by the Apex Court in the case of Sheonandan Paswan21 the capacity of the
deceased's father cannot be questioned on the ground that he has no locus standi for making
the prayer for appearing and arguing this appeal in the aid and in assistance of the Additional
Public Prosecutor representing the respondent, the State of Bihar.
“We also do not find any legal impediment prohibiting exercise of the discretion of
this Court, under the provisions of Sections 301 and 302 of the Code of Criminal
Procedure in according the permission as sought by the deceased's father. Therefore,
we allow the prayer of the deceased's father and hereby direct that the Vakalatnama
filed by the deceased's father be accepted.”
The Supreme Court in the case of Mukesh and Anr vs. State for NCT of Delhi22 allowed
the petitions filled by the victim’s parents for impleadment and accepted to hear the
contentions of the petitioner’s advocates.
1.3.Constitutionality of blanket ban on criminal courts to try juveniles
It is submitted that having regard to the object behind the enactment, the Act has to be read
down to understand that the true test of “juvenility” is not in the age but in the level of mental
maturity of the offender. It is contended that this would be in furtherance of its purpose. It is
submitted that the Act is not intended to apply to serious or heinous crimes committed by a
juvenile. The provisions of Sections 82 and 83 of the Indian Penal Code have been placed to
contend that while a child below 7 cannot be held to be criminally liable, the criminality of
those between 7 and 12 years has to be judged by the level of their mental maturity. This is
how the two statutes i.e. Indian Penal Code and the Act has to be harmoniously understood.
It is contended that in that event the Act will offend Article 14 of the Constitution as all
offenders below the age of 18 years irrespective of the degree/level of mental maturity and
irrespective of the gravity of the crime committed would be treated at par. Such a blanket
treatment of all offenders below the age of 18 committing any offence, regardless of the
seriousness and depravity, is wholly impermissible under our constitutional scheme.
20
Awadhesh Singh Son of Late Hardeo Singh vs. The State of Bihar 2009(57)BLJR2209
21
Sheonandan Paswan vs State of Bihar and Ors.1987(1)SCC288
22
Mukesh and Anr vs. State for NCT of Delhi

The non-obstante provisions contained in Section 1(4) of the Act as well as the bar imposed
by Section 7 on the jurisdiction of the criminal court to try juvenile offenders cannot apply to
serious and heinous crime committed by juveniles who have reached the requisite degree of
mental maturity, if the Act is to maintain its constitutionality. It is submitted that the purport
and effect of Section 1(4) of the Act must be understood in a limited manner. 23 14. By
referring to the provisions of the United Nations Standard Minimum Rules for the
Administration of Juvenile Justice, 1985 (Beijing Rules); the Convention of the Rights of the
Child, 1990 (CRC) and the United Nations Rules for the Protection of Juveniles Deprived of
their Liberty, 1990(Havana Rules), it is contended that the international commitments entered
into by India obliges it to set up a particular framework to deal with juvenile offenders and
such obligations can be more comprehensively met and effectuated by understanding the Act
in the aforesaid manner. The practice in vogue in several foreign jurisdictions, particularly, in
the U.K., USA and Canada for adjudicating criminal liability of young offenders also
supports the view of the Petitioner.
Specifically, it is pointed out that the practice of statutory exclusion which ensures that
perpetrators of certain grave offences are prosecuted as adults; ‘judicial waiver’, granting
discretion to special juvenile courts to waive jurisdiction and transfer the juvenile’s case to an
ordinary court of law and also the policy of concurrent jurisdiction of both the ordinary and
juvenile courts giving discretion to the prosecutor to initiate proceedings in the more suitable
court are followed in such jurisdictions. It is also suggested that Section 28 of the Act be read
together with Section 15 to enable the alternatively higher punishment under other
State/Central enactments, such as the IPC to be awarded to a juvenile offender. It is argued
that this would incorporate the policy of concurrent jurisdiction of both ordinary criminal
courts and JJ Boards..
It is contended that the ban on jurisdiction of criminal courts by Section 7 of the Act is
unconstitutional inasmuch as it virtually ousts the criminal justice system from dealing with
any offence committed by a juvenile. Parliament cannot make a law to oust the judicial
function of the courts or even judicial discretion in a matter which falls within the jurisdiction
of the courts.24 It is argued that what the Act contemplates in place of a regular criminal trial
is a non-adversarial inquiry against the juvenile where the prime focus is not on the crime
23
Essa @ Anjum Abdul Razak Memon vs. State of Maharashtra
24
Mithu Vs. State of Punjab and Dadu Vs. State of Maharashtra

committed but on the reasons that had led the juvenile to such conduct. The maximum power
of ‘punishment’, on proof of guilt, is to send the juvenile to a special home for three years.
The entire scheme under the Act being substantially different from what is provided by the
Code of Criminal Procedure for investigation of offences and for trial and punishment of
offenders, it is submitted that the Act offends a core constitutional value namely, the
existence of a criminal justice system. The proceedings against the juvenile held by the JJ
Board are, therefore, null and void and the said juvenile is liable to be tried by a competent
criminal court in accordance with the procedure prescribed. In this regard, it is also submitted
that the concept of double jeopardy under Article 20(3) of the Constitution and Section 300
of Penal Code will have no application inasmuch as the proceedings before the JJ Board
did/does not amount to a trial.
Thus, the juvenile delinquent in the instant case must not be construed to be an adult within
the meaning of the Act as the same would render the substantive law and the Constitutional
mandate nugatory.
1.4 Interpretation of section 28 of the act JJ ACT
It is submitted by the Petitioners that though the Sec. 15 of the Act specifically provides for
the punishments that are to be given to a Juvenile in conflict with the law, Counsel for the
Petitioners would like to place emphasis on the Section in JJ Act that deals with the alternate
punishments that are to be given to the Juveniles.
Section 28 of the act25 states:
“Where an act or omission constitute an offence punishable under this Act and also under
any other Central or State Act, then, notwithstanding anything contained in any law for the
time being in force, the offender found guilty of such offences shall be liable to punishment
only under such Act as provides for punishment which is greater in degree.”
The Counsel would now like to bring it to the lime light the fact that in the recent trend
people who are below 18 years of age started committing more and more Heinous crimes.
According to police, half of the sexual offences nowadays are committed by 16 years olds
who know the Juvenile Justice Act. “But now, if we bring them into the purview of the adult
world, for premeditated murder, rape then it will scare them” The discourse in the aftermath
of the December 16 gang rap, about 16 to 18 year-olds accused of rape ‘deserving’ to be tried
25
Juvenile Justice (Care and Protection of Children) Act, 2000

as adults, has propelled the passage of the Juvenile Justice (Care and Protection of Children)
Bill, 2015. However ‘heinous offences’ as defined in the legislation doesn’t encompass
gruesome crimes such as rape and murder. Juveniles accused of counterfeiting, cheating,
arson, kidnapping, causing grievous hurt, dacoity, burglary or committing theft in a building
are all now liable to be tried as adults.
In the case of Tamok KomutVs.State of Arunachal Pradesh and Ors26..Four persons

committed the offence of rape in which one was a juvenile. Trial court held that all 3 adults
should undergo rigorous imprisonment of 10 years.But the juvenile was asked only to pay
Rs.30,000 after which he was left free.Ratio decided in the case was "Courts shall not be
lenient for criminals involved in heinous crimes”But it did not apply to juveniles which is
totally unfair.
The petitioners would also like to submit the NCRB reports from which it is evident that the
share of IPC crimes registered against juveniles to total IPC crimes reported in the country
during 2004-2005 remained static at 1.0% which marginally increased by 1.1% in 2006 and
remained static in 2007. This share increased marginally by 1.2% in 2008 thereafter
marginally increased by 1.1% in 2011. Further, the share increased by 1.2% in 2012 and
remained static at 1.2% in 2013 and 2014. The number of IPC Crimes against juveniles in
2014 have increased by 5.7% i.e., from 31,725 to 33526 cases. The highest share of cases
registered against juveniles were reported under the crime head ‘theft’ (20.0%), ‘rape’ (5.9%)
and ‘grievous hurt’ & 'assault on women with intent to outrage her modesty' (4,7% each).
These four crime heads have together accounted for 39.7% of total IPC cases (33,526 cases)
of juveniles in conflict with law. SLL Crimes have increased by 21.8% in 2014 as compared
to 2013, as 4,136 cases of juveniles in conflict with law under SLL reported in 2013 which
increased to 5,039 cases in 2014. The highest share of cases registered against juveniles was
reported for the crime under ‘Prohibition Act’ which accounted for 41.3% of total SLL cases
(5,039 cases) registered against juveniles. A total of 121 cases and 94 cases registered against
juveniles under murder in Maharashtra and Madhya Pradesh respectively during 2014.
Among UTs, 120 cases of rape registered against juveniles were reported in Delhi during the
year 2014.Cases were registered against juveniles under assault on women with intent to
outrage her modesty. The decrease in the number of juveniles apprehended was 15.9% in 12-
16 years age group (from 13,346 in 2013 to 11,220 in 2014) and increase by 25.3% in 16-18
26
Tamok KomutVs.State of Arunachal Pradesh and Ors ,(2009)1GLR377

years age group (from 28,830 in 2013 to 36,138 in 2014) during 2014 over 2013. The overall
increase in juveniles apprehended at the national level was 10.9% more in 2014 as compared
to 201327.
Thus it is most Humbly submitted that for the purpose of punishing juveniles for heinous
crimes alternative punishment as mentioned under Section-28 of Juvenile Justice Act,2000
must be used. Protecting Juveniles for the heinous offences they commit will increase the
crime rates in the society
2. Whether or not the Constitutional sanction of an enactment have an overriding effect to an

International convention and/or statute, of which Indica is a signatory?
In connection with treaties, the basic concepts of “Monism” and “Dualism” have long been
used to explain some of the relationships of treaty law to domestic law.
Dualist approach
1. International and municipal laws are considered as totally separate legal systems
2. International law is therefore not a part of the internal legal system
3. Avoid the question of supremacy of the one system over another
4. Each is supreme in its own sphere
We in India are supposed to follow Dualist approach.
Supreme Court in State of West Bengal Vs. Kesoram Industries Ltd 28. In paragraph 490 of
the SCC report in Kesoram, the Supreme Court pointed out that the doctrine of "Monism" as
prevailing in the European countries, and pointed out that "a Treaty entered into by India
cannot become law of the land and it cannot be implemented unless Parliament passes a law
as required under Article 253." This judgement on its sole standing shows the Supremacy of
the Constitution over the International Conventions.
The Supreme Court also drew a distinction in paragraph 494 of the report in Kesoram
between the interpretation of a legislation in conformity with international principles and the
giving effect to of a Treaty provision in the absence of Municipal Laws.
27
http://ncrb.nic.in/StatPublications/CII/CII2014/Compendium%202014.pdf
28
West Bengal Vs. Kesoram Industries Ltd 2004 (10) SCC 201

In Tractor Export Vs. Tarapore & Co29 , the Supreme Court pointed out that if the terms of
the legislative enactment do not suffer from any ambiguity, they must be given effect to, even
if they do not carry out the Treaty obligations. InT. Rajkumar and Ors. Vs. Union of India,
Ministry of Finance, Department of Revenue and Ors30the Madras HC held, But, since the
Supreme Court has held in Jolly George Varghese31 that Indian Constitution follows dualistic
doctrine with respect to international law, it must be taken that an international Treaty, can be
enforced only so long as it is not in conflict with the municipal laws of the State.32
The Council for the Petitioner on this note would like to emphasis on the fact that the
legislations in a country can be amended according to public welfare and the power to amend
laws for public good cannot be curtailed by an International Convention.
In the case of Ram Jethmalani vs. Union of India33, it has been stated that The Government
cannot bind India in a manner that derogates from the Constitutional provisions, values and
imperatives34. However, creative interpretation of constitution has lent itself to judges making
fine distinctions to further purposive interpretation.
Krishna Iyer, J. in a decision of the Kerala High Court, Xavier v. Canara Bank Ltd35.,
emphasized that international treaties cannot override the law of the land to do away with
certain substantial laws altogether. It is settled law that the Constitution's supremacy has to be
upheld and nothing which is in derogation to the Constitutional mandate has to be accepted.
The positive commitment of the State parties ignites legislative action but does not
automatically make the covenant an enforceable part of the Corpus juris of Indica36
29
Tractor Export Vs. Tarapore & Co AIR 1970 SC 1168,
30
T. Rajkumar and Ors. Vs. Union of India, Ministry of Finance, Department of Revenue and Ors
2016(3)CTC681
31
Jolly George Varghese and Anr. vs. The Bank of Cochin AIR 1980 SC 470
32
Supra 3
33
Ram Jethmalani Vs. Union of India 2011 (8) SCC 1
34
Ibid
35
Xavier v. Canara Bank Ltd 1969 KLT 927
36
Supra 4

2.1 International concept of age of criminal responsibility (Beijing rules, CRC, Hawana
rules)
It is submitted by the counsels for the respondent that it was only during the 20th century that
the concept of children’s rights emerged. This shift in focus from the ‘welfare’ to the ‘rights’
approach is significant. Rights are entitlements. They also imply obligations and goals. The
rights approach is primarily concerned with issues of social justice, non-discrimination,
equity and empowerment. The ‘rights’ perspective is embodied in the CRC,37 which is a
landmark in international human rights legislation. India ratified the Convention on the
Rights of the Child in December 1992.
According to Article 1 of the CRC, “a child means every human being below the age of 18
years unless, under the law applicable to the child, majority is attained earlier”. The Article
thus grants individual countries the discretion to determine by law whether childhood ceases
at 12, 14, 16 or whatever age is found appropriate.
The European Court of Human Rights found the lack of European consensus on an age for
criminal responsibility to be central to its determination that an age of 10 did not amount to
“cruel and unusual treatment or punishment”, under art 3 of the European Convention. In the
case of T v United Kingdom, V v United Kingdom38,there is clear evidence that a number of
other European countries do set the age of criminal responsibility considerably higher than
eight, with many countries opting for 14, 15 or 16 years old
It is also contended that Article 40 (3) of CRC requires States parties to promote, the
establishment of a minimum age below which children shall be presumed not to have the
capacity to infringe the penal law, but does not mention a specific minimum age in this
regard. The committee understands this provision as an obligation for States parties to set a
minimum age of criminal responsibility (MACR). Children who commit an offence at an age
below that minimum cannot be held responsible in a penal law procedure. It is to be noted in
this regard that the minimum age of Criminal Responsibility in India is 12 years. Even though
Children below the age of 12 do have the capacity to infringe the penal law but if they
commit an offence when below MACR the irrefutable assumption is that they cannot be
formally charged and held responsible in a penal law procedure. For these children special
protective measures can be taken if necessary in their best interests; Children at or above the
37
United Nations Convention on the Rights of the Child 1989
38
T v United Kingdom, V v United Kingdom (1999) 30 EHRR 121),

MACR but younger than 18 years can be formally charged and subject to penal law
procedures.
Rana in the Present case, the Juvenile in conflict of law is well above the MACR and below
the age of 18 thus can be formally charged and subject to penal procedures.
existing scenario most of the juveniles are engaged in horrendous and heinous crimes like
rape, murder and drug – peddling, etc.?
The counsel for the petitioners humbly submits that juvenility should be decided with respect
to the nature of the offence that is heinous crimes such as rape, murder and drug- peddling.
3.1 Interpretation of sections 2(p), 2(k), 2(l) of the JJ act 2000.
The sections 2(p) which defines an offence which has an elaborate meaning which includes
bailable and non bailable offences with cognizable and noncognizable offences. But at this
juncture the counsel would humbly submit to this court that the proportion of offences which
are cognizable are increased double fold and thus cognizable offences are all the heinous
offences within the purview of offences.
Also 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.39
As per the JJ Act 2000 any juvenile in conflict with law who has committed an offence
punishable under the law of land shall be only apprehended and tried before the JJ board, but
the real uncertainty exists where there has been a judicial precedents with regards to the trial
of a juvenile offender by the normal criminal court along with the other accused persons
rather than having the accused person who is been out to be a juvenile.
The counsel for the petitioners would humbly submit to this court the decided judicial
precedents in which the court had lifted the veil of juvenility and had held the offences
committed by an individual even being a juvenile then too was prosecuted under the regular
penal code.
Thus the counsel respectfully submits that in the case of Parang Bhati thr. Legal Guardian-
Mother-Smt. Rajni Bhati vs State of Uttar Pradesh and Ors.40when an accused commits a
39
Section 2(l), Juvenile justice (Care and protection of children ) Act 2000
40
Parang bhati(Juvenile) thr. Legal Guardian-Mother-Smt. Rajni bhati vs State of Uttar Pradesh and Ors
AIR2016SC2418

grave and heinous offence and thereafter attempts to take statutory shelter under the guise of
being a minor, a casual or cavalier approach while recording as to whether an accused is a
juvenile or not cannot be permitted as the courts are enjoined upon to perform their duties
with the object of protecting the confidence of common man in the institution entrusted with
the administration of justice
Also the court went on to affirm a strong note that the benefit of the principle of benevolent
legislation attached to the JJ Act would thus apply to only such cases wherein the accused is
held to be a juvenile on the basis of at least prima facie evidence regarding his minority as the
benefit of the possibilities of two views in regard to the age of the alleged accused who is
involved in grave and serious offence which he committed and gave effect to it in a well-
planned manner reflecting his maturity of mind rather than innocence indicating that his plea
of juvenility is more in the nature of a shield to dodge or dupe the arms of law, cannot be
allowed to come to his rescue.
More stress is to be given to the Bombay bomb blast case juvenile accused whose conviction
was upheld by the apex court and stated that terrorism and heinous crimes cannot be fastened
only on adults, the Supreme Court said on Thursday while upholding the conviction of
Muhammad Moin Faridulla Qureshi, who was 17 years and 3 months old when he loaded
vehicles with explosives and fitted them with timers.41
In another landmarked judgement in the case of Sato vs state of UP that the court had took a
strong exception in sending the juvenile offenders to probation home rather than jails .Thus
the court convicted three boys in connection of rape on a 11 year old girl that it cannot be
justifiable to send the boys to probation home that on the grounds to consider the age factor.42
Thus the ambit of section 2(p) is to be increased well in order to improve the scope of the act
to be included for all heinous and grave offences committed by the accused persons who are
juveniles and all the accused shall only be tried as an normal accused person on par with the
other accused and they shall be prosecuted for the same offence under the regular penal law.
The Juvenile Justice Act, 2000 has been criticized on the ground that it has failed in curbing
crimes committed by juveniles. Over the years the society has witnessed flagrant rise in the
number of crimes committed by juveniles but the Act has not been able to act as an effective
deterrent against juvenile delinquency. A considerable section of the society believes that the
Act should be more punitive at least with regard to heinous crimes committed by juveniles.
41
Supra 23
42“Is it impossible to stop rape” by Madhabhushi Sridhar

The rationale behind this thinking being that fear of strict punishment would deter juveniles
from committing such crimes and would ensure safety of the society.43
The counsel would also like to respectfully submit that there should be a categorization of
offences of the juveniles as (i) heinous offences (those with minimum punishment of seven
years of imprisonment under IPC or any other law), (ii) serious offences (three to seven years
of imprisonment), and (iii) petty offences (below three years of imprisonment).
Thus under Article 21 of the Constitution, every citizen has a fundamental right to live in
dignity and peace, without being subjected to violence by other members of society and that
by shielding juveniles, who were fully capable of understanding the consequences of their
actions, from the sentences, as could be awarded under the Indican Penal Code, as far as
adults are concerned, the State was creating a class of citizens who were not only prone to
criminal activity, but in whose cases restoration or rehabilitation was not possible.44
3.2 Interpretation of section 82 and 83 of Indican Penal code and extension to juveniles
from 12-18.
Indican penal code states that nothing is an offence which is done by a child under seven
years of age.45 It also envisages that nothing is an offence which is done by a child above
seven years of age and under twelve, who has not attained sufficient maturity of
understanding to judge of the nature and consequences of his conduct on that occasion.46
The age of responsibility, as accepted in India, is different from what has been accepted by
other countries of the world. But, Mr Bali also pointed out that even in the criminal
jurisprudence prevalent in India, the age of responsibility of understanding the consequences
of one's actions had been recognized as 12 years in the Indian Penal Code. Referring to
Section 82 of the Code, Mr Bali pointed out that the same provides that nothing is an offence
which is done by a child under seven years of age read with Section 83 of the Code, which
provides that nothing is an offence which is done by a child above seven years of age and
under twelve, who has not attained sufficient maturity of understanding to judge the nature
and consequences of his conduct on a particular occasion. Mr. Bali, therefore, urged that even
43
Juvenile Justice System at a Crossroads: Assessing the issues and challenges in the Juvenile Justice Scheme in
India 2014 GJLS Vol. I, No. 1
44
Salil bali vs union of india AIR2013SC3743
45
Section 82 Indiacan penal code 1860
46
Section 83Indican Penal code 1860

under the Indian Criminal Jurisprudence the age of understanding has been fixed at twelve
years, which according to him, was commensurate with the thinking of other countries, such
as the United States of America, Great Britain and Canada.
In regard to Canada, Mr Bali referred to the Youth Criminal Justice Act, 2003, as amended
from time to time, where the age of criminal responsibility has been fixed at twelve years.
Referring to Section 13 of the Code of Criminal Procedure of Canada 47, the counsel for the
petitioners humbly submits that the same is in pari materia with the provisions of Section 83
of the Indican Penal Code. In fact, according to the Criminal Justice Delivery System in
Canada, a youth between the ages of 14 to 17 years may be tried and sentenced as an adult in
certain situations. The counsel would also point out that even in Canada the Youth Criminal
Justice Act governs the application of criminal and correctional law to those who are twelve
years old or older, but younger than 18 at the time of committing the offence, and that,
although, trials were to take place in a Youth Court, for certain offences and in certain
circumstances, a youth may be awarded an adult sentence.
The counsel also refers to the legal circumstances prevailing in other parts of the world for
the present consideration in England and wales and Under the said laws, the minimum age of
criminal responsibility in England and Wales is ten years and those below the said age are
considered to be doli incapax and, thus, incapable of having any mens rea, which is similar to
the provisions of Sections 82 and 83 of Indican Penal Code. Thus we contend that there was a
general worldwide concern over the rising graph of criminal activity of juveniles below the
age of eighteen years, which has been accepted worldwide to be the age limit under which all
persons were to be treated as children.
Sections 82 and 83 of the Indican Penal Code, where the age of responsibility and
comprehension has been fixed at twelve years and below. The Counsel submits that having
regard to the above-mentioned provisions, it would have to be seriously considered as to
whether the definition of a child in the Juvenile Justice (Care and Protection of Children) Act,
2000, required reconsideration. Also that because a person under the age of 18 years was
considered to be a child, despite his or her propensity to commit criminal offences, which are
of a heinous and even gruesome nature, such as offences punishable under Sections 376, 307,
302, 392, 396, 397 and 398 Indian Penal Code, the said provisions have been misused and
exploited by criminals and people having their own scores to settle.
47
Section 13 of the Code of Criminal Procedure of Canada

3.3 Article 14
The guarantee against the denial of equal protection of the law does not mean that identically
the same rules of law should be made applicable to all persons in spite of differences in
circumstances or conditions.48 It means that equals should not be treated unlike and unlikes
should not be treated alike. Likes should be treated alike.49 Art. 14 would be violated if
unequals are treated as equal.50 The varying needs of different classes of persons often
require separate treatment.51 In fact, identical treatment in unequal circumstances would
amount to inequality.52 So, a reasonable classification is not only permitted but is necessary if
society is to progress53. any penalty disproportionate to the gravity of the misconduct would
be violative of Art. 14.54
The act must be considered as a whole.55 The purpose of the Act is to be ascertained from its
title, preamble and provisions.56
The intension of the Legislature in enacting the Juvenile Justice (Care and Protection of
Children) Act, 2000, is to make sure that the Act doesn’t shield the offenders but rather make
sure they are reformed and become contributing citizens of the country before it is too late.
Thus the counsel for the petitioners plead that treating different offenders in the age group of
12-18 in one manner and above eighteen years offenders in a opposite manner would render
injustice and also that would be against the article 14 of the constitution and thus it should be
properly interpreted.
Art. 14 strikes at arbitrariness in state action and ensures fairness and equality of treatment.23
In the case of Bachan Singh v. State of Punjab57, it was held that, the "rule of law" which
permeates the entire fabric of the Indian Constitution excludes arbitrariness. Whenever we
48
ChiranjeethLal v. Union of India AIR 1950 SC 41 : 1950 SCR 869.
49
Gauri Shankar v. Union of India AIR 1995 SC 55 at 58 : (1994)6 SCC 349
50
Om Narain v. Nagar Palika AIR 1993 SC 144; See also Secretary v. W.B.R.S.A AIR 1992 SC 1203
51
ChiranjithLal v. Union of India AIR 1951 SC 41; See also State of Bombay v. F.N. Balsara AIR 1951 SC
318; KedarNath v. State of West Bengal AIR 1953 SC 404.
52
Abdul Rehman v. Pinto AIR 1951 (Hyd) 11
53
Jagit Singh v. State AIR 1954 (Hyd) 28
54
Bhagat Ram v. State of Himachal Pradesh AIR 1983 SC 454, 460: (1983) 2 SCC 442
55
Mohammed Usman v. State of A.P. AIR 1971 SC 1801
56
KedarNath v. State of W.B. AIR 1954 SCR 30; Ram Sarup v. UOI AIR 1965 SC 247 (252)
57
1980)2SCC 684

find arbitrariness or unreasonableness there is denial of rule of law.58 An arbitrary state action
infringes Art. 1459. The principle of reasonableness, which legally as well as philosophically,
is an essential element of equality or non-arbitrariness, pervades Art. 14 like a brooding
omnipresence.
A legislature is entitled to make reasonable classification for the purpose of legislation and
treat all in one class on an equal footing.60 For a legislation to be reasonable, it must fulfill the
following two conditions.
1. The classification must be founded on an intelligible differentia which distinguishes
persons or things that are grouped together from others left out of the group;
2. The differentia must have a rational relation to the object sought to be achieved by the
Act.61
It is humbly submitted before this Hon'ble Court that the impugned provision does not stand
the test of reasonable classification. ‘Juvenile’ means a child below the age of eighteen years
Also that a juvenile aged between 16 and 18, on committing a heinous offence may be treated
as adults. The expression “intelligible differentia” means difference capable of being
understood. A factor that distinguishes or in different state or class from another which is
capable of being understood. Denial of benefit to some persons while extending the same to
other persons belonging to the same circumstances is against the ‘equal protection of laws’
expression under Article 14 of the Constitution of Indica.62
3.4 Judicial waiver discretion of juvenile courts:

The United Nations Standard Minimum Rules for the Administration of Juvenile Justice,
1985 (Beijing Rules); the Convention of the Rights of the Child, 1990 (CRC) and the United
Nations Rules for the Protection of Juveniles Deprived of their Liberty, 1990 (Havana Rules),
the counsels would contend that the international commitments entered into by India obliges
58
E.P. Royappa v. State of Tamil Nadu AIR 1974 SC 555
59
A.P. Aggarwal v. Govt. of NCT of Delhi AIR 2000 SC 205
60
State of Uttar Pradesh v. Kamla Palace AIR 2000 SC 617 : (2000)1 SCC 557
61
K.Thimmappa v. Chairman, Central BOD, SBI AIR 2001 SC 467; Laxmi Khandsari v. State of U.P. AIR 1981
SC 873, 80: (1981) 2 SCC 600; Javed v. State of Haryana AIR 2003 SC 3057; Kerala Hotel and Restaurant
Association v. State of Kerala AIR 1990 SC 913; Shujat Ali v. Union of India AIR 1974 SC 1631; Budhan v.
State of Bihar AIR 1955 SC 191; State of Harayana v. Jai Singh (2003) 9 SCC 114 : AIR 2003 SC 1696; State
of West Bengal v. Anwar Ali AIR 1952 SC 75.
62
Article 14 constitution of indica

it to set up a particular framework to deal with juvenile offenders and such obligations can be
more comprehensively met and effectuated by understanding the Act in the aforesaid manner.
The practice in vogue in several foreign jurisdictions, particularly, in the U.K., USA and
Canada for adjudicating criminal liability of young offenders has also been placed before the
Court. Specifically, it is pointed out that the practice of statutory exclusion which ensures that
perpetrators of certain grave offences are prosecuted as adults; 'judicial waiver', granting
discretion to special juvenile courts to waive jurisdiction and transfer the juvenile's case to an
ordinary court of law.
There has been a discernible trend cross-nationally in recent years towards transfer, waiving
the special procedural and disposal protection give to child offenders. This process is often
referred to as "waiver" or "bind-over." This process has been led by the USA, under the neo-
correctionist heading of increasing young people’s accountability for their crimes and
protecting the public.63Under this process, young person accused of crime are transferred to
ordinary criminal courts and are dealt with accordingly. The factors which are taken into
consideration before waiver is exercised are advanced age, severity of crime, criminal history
of juvenile and whether previous efforts at treatment have been successful. A judge’s
decision to remand a case to adult courts requires a determination that the youth is no longer
amenable to the treatment offered in the juvenile system. This trend has also found its way
into more welfare-oriented systems such as Netherlands, Belgium, Canada, and Japan.
The Judicial waiver is widely considered as the most rationalistic option wherein the judge
applies his judicial wisdom and experience for ascertaining, amenability to treatment before
ordering the waiver.
3.5 Age, mental maturity and interpretation vs unconstitutionality

Accordingly, the definition of a child in Section 2(k) of the Juvenile Justice (Care and
Protection of Children) Act, 2000, would depend on the existing laws in India defining a
child. The counsel would like to refer to the provisions of the Child Labour (Prohibition and
Regulation) Act, 198664, as an example, to indicate that children up to the age of fourteen
years were treated differently from children between the ages of fourteen to eighteen, for the
purposes of employment in hazardous industries. in regard to heinous crimes committed by
children below the age of eighteen years, who were capable of understanding the
63
Neal Hazel, Cross national comparison of youth justice 35 (1 ed. 2008),
http://dera.ioe.ac.uk/7996/1/Cross_national_final.pdf (last visited Aug 3, 2015).
64
Section 2(2) child labour prohibition and regulation act 1986

consequences of their acts contended that while the provisions of the Juvenile Justice (Care
and Protection of Children) Act, 2000, are generally meant for the benefit of the juvenile
offenders, a serious attempt would have to be made to grade the nature of offences to suit the
reformation contemplated by the Act
4.Whether ossification test will be preferred over matriculation certificate as an

appropriate method to determine the age of the juvenile?
It is most respectfully submitted that the JJ Act is meant to treat a child accused with care and
sensitivity thereby offering him a chance to reform and to settle into the mainstream of
society. It certainly cannot be used as a device to dupe the course of justice while trial ad
treatment of heinous offences which would be considered to weaken the justice dispensation
system.
In the case of Smt. Leena Katiyar vs. State of Uttar Pradesh65, it was held by the Court that
the margin of error in Ossification test can be reduced to a period of 6 months sue to
technological advancements and overturned the order of a lower court on the grounds that it
had utterly disregarded textbooks of medical jurisprudence and for not giving cogent reasons
for such disregard. It also overturned the order of the lower court in not giving priority to the
ossification test while considering the gravity of the offence in which the accused has been
involved and thus found the lower court’s order to be untenable.
In the case of Arnit Das vs State of Bihar66, the Court clarified that a hyper-technical
approach while appreciating evidence for determination of the age of the accused should not
be taken. If two views are possible, the Court should lean in favour of holding the accused to
be a juvenile in borderline cases. It was held that the JJ Act was a welfare legislation and that
the Court would see to it that a juvenile derives the full benefits of the Act but at the same
time, it is also imperative for the courts to ensure that the protection and privileges under the
Act are not misused by unscrupulous persons to escape punishments for having committed
serious offences.
The JJ Act is a piece of benevolent legislation which cannot be allowed to be availed of by an

accused who has taken the plea of juvenility merely as an effort to hide his real age so as to
create doubt in the mind of the courts which may lead the courts to miss its vital implication
65
Smt. Leena Katiyar vs. State of Uttar Pradesh 2015 (89) ALLCC 556
66
Arnit Das vs State of Bihar (2000) 5 SCC 488

by merely applying the same to an accused who seeks to use it as a protective umbrella or
statutory shield.
That matriculation and other equivalent certificates could be held unreliable to determine the
age of a juvenile in conflict with the law if they were issued after the juvenile was charged
and that the absence of primary evidence like entry from birth register, etc. has not been
produced is a grounds to consider other relevant documents and tests to determine the age has
been stated in the case of Pawan vs State of Uttaranchal67.
In the case of Om Prakash vs State of Rajasthan68, the Court held that the age of the accused
could not be proved merely on the basis of the school record as the courts below could not
record a finding of fact as to the claim of minority on the date of the crime. It stated that in
cases where matriculation certificates and other school records were not free from ambiguity
and conclusively prove the minority of the accused, medical opinion could not be overlooked
or treated to be of no consequence.
In Chauhan alias Raj Nath v. State of Assam, It was further held that while considering the
relevance and value of the medical evidence, the doctor’s estimation of age, although not
sturdy substance for proof as it is not only an opinion but is based on scientific medical tests
like ossification and radiological examination will have to be treated as strong evidence
having corroborative value. In the absence of other acceptable material, if such tests point to
a reasonable possibility regarding the range of the age of the accused, it has to certainly be
considered69.
The application of the yardstick to determine the age of the offender is at times an arduous
task enjoined upon the courts of law and therefore the responsibility sacrosanct. In the
eventuality that a mere decision as to the age of the offender can seal the fate of the person,
the courts are expected to deal with the issue with utmost care and sensitivity, involving
meticulous deliberation and diligence.
The counsels for the Petitioner wish to reiterate upon the fact that the courts have to be
vigilant to prevent the misuse of claims of juvenility by those trying to evade punishment.
The courts must scrutinize the documentary evidence in support of the claim of juvenility.
67
Pawan vs State of Uttaranchal (2009) 15 SCC 259
68
Om Prakash vs State of Rajasthan (2012) 5 SCC 201
69
Chauhan alias Raj Nath v. State of Assam (2001) 5 SCC 714

The courts must also not act obliviously and overlook the practical realities prevailing in our
country with respect to the poor school administration. Such degree of care and caution has to
be exercised by the courts so as to not let the offender take a blanket protection under the JJ
Act70.
A major challenge now will be to establish the age of juveniles, which will not be easy
because no more than 56.2% of India’s births were registered in 2000, according to the Civil
Registration System
This means the ages of teenagers born in 2000 could be uncertain. For instance, juveniles
presumed to be aged 16 or older, based on school certificates, might actually be 15.
Economically disadvantaged children, currently aged between 15 and 18 based on official
records or school certificates, are at maximum risk.
As many as 78% of Indian juveniles are from families with annual incomes less than Rs
50,000 per annum, and 53% of juveniles are either illiterate or educated till primary school.71
The petitioner counsel would also place reliance on the judgement in Devendar Singh v. State
of Madhya Pradesh were the court held that whether the admission in the school Register has
the finality in the determination of age. It is held that as there is tendency on the part of the
parents to underestimate the age or sometime to enhance the age, so date of birth shown in
the school admission Register cannot be sacrosanct.72
70
Mor Pal vs State, 198 (2013) DLT 487
71
Census of india report 2001
72
Devendar Singh v. State of Madhya Pradesh, 1998 Cr LJ 3654 (MP)

PRAYER
Wherefore in light of the issues raised, arguments advanced and authorities cited, it is humbly
prayed that this Hon’ble Court may be pleased to
1) Settle the congruity in the interpretation of Section 2(k), 2(p), 2(l) to be interpreted
in such a way that it remove the blanket-ban on criminal court from exercising its
jurisdiction and laid down the test of juvenility.
2) Consider the nature of the crime committed by the juveniles in the present case the
court may be pleased to exercise judicial waiver and letting the juvenile accused to be
tried along with the other adult offenders (or)
the Court may make any other such order as it may deem fit in terms of justice, equity and
good conscience.
And for this act of kindness the Petitioners shall as duty bound ever humbly pray.
Respectfully Submitted
Place: Bangla, Indica S/d.BLCRL28
Date: January 2017 Counsel(s) for the Petitioners

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TEAM: BLCRL28

THE 1ST MRINALINI DEVI MEMORIAL NATIONAL MOOT COURT COMPETITION-2017

BEFORE THE HONOURABLE HIGH COURT OF BANGLA, INDICA

WRIT PETITION NO (Crl): 124 /2015

In The Matter of:

RANA THR. JUVENILE JUSTICE BOARD AND ORS………………....Respondent

MEMORANDUM ON BEHALF OF THE PETITIONERS

COUNSEL APPEARING ON BEHALF OF THE PETITIONERS

a. Cases Referred …………………………………………………..…. 06

5. ISSUES FOR CONSIDERATION 11

1.1 alternative remedies - no bar

1.2 Application for impleadment to prosecute

1.3 Constutionality of blanket ban on criminal courts to try juveniles

1.4 Interpretation of section 28 of the act JJ ACT

2 | MEMORANDUM ON BEHALF OF THE PETITIONERS

2. WHETHER OR NOT THE CONSTITUTIONAL SANCTION OF AN ENACTMENT

HAVE AN OVERRIDING EFFECT TO AN INTERNATIONAL CONVENTION AND/OR

STATUTE, OF WHICH INDICA IS A SIGNATORY?

2.1 International concept of age of criminal responsibility (Beijing rules, CRC,

3. WHETHER THE JUVENILITY WILL DEPEND UPON THE NATURE OF THE

OFFENCE COMMITTED AS IN THE EXISTING SCENARIO MOST OF THE

JUVENILES ARE ENGAGED IN HORRENDOUS AND HEINOUS CRIMES LIKE

RAPE, MURDER AND DRUG – PEDDLING, ETC.?

3.1 Interpretation of sections 2(p), 2(k), 2(l) of the JJ act 2000.

3.2 Interpretation of section 82 and 83 of Indican Penal code and extension to

3.4 Judicial waiver discretion of Juvenile Courts

3.5 Age , Mental maturity and interpretation V. unconstitutionality

4. WHETHER OSSIFICATION TEST SHALL BE PREFERRED OVER

8. PRAYER FOR RELIEF 34

3 | MEMORANDUM ON BEHALF OF THE PETITIONERS

Cr.P.C Code of Criminal Procedure

IEA Indian Evidence Act

AIR All India Reporter

Cri LJ Criminal Law Journal

FIR First Information Report

Cri LJ Criminal Law Journal

SCR Supreme Court Reporter

SCC Supreme Court Cases

4 | MEMORANDUM ON BEHALF OF THE PETITIONERS

r/w read with

u/s Under section

ACR Allahabad Criminal Rulings

UOI Union Of India

BLJR Bihar Law Journal Reports

CTC Current Tamil Nadu Cases

KLT Kerala Law Times

ALLCC Allahabad Criminal cases

5 | MEMORANDUM ON BEHALF OF THE PETITIONERS

1. Comptroller and Auditor General of India v. K.S.Jagannathan (1986) 2 SCC 679.

7. State v Gujarat Ambuja Cement Ltd. (2005) 6 SCC 499

8. Harbanslal v Indian Oil Corp. (2003) 2 SCC 107

10. Manne Subbarao v. State of A.P (1980) 3 SCC 140

11. Shiv Kumar v. Hukam Chand 1999(3)ACR2101(SC)

12. Domestic Working Women's Forum v. Union of India (1995) 1 SCC 14

13. J.K. International v. State (Govt. of NCT of Delhi)(2001) 3 SCC 462

15. Birendra Kumar vs. State of Jharkhand and Ors

6 | MEMORANDUM ON BEHALF OF THE PETITIONERS