Roll

Roll Number:
Number: 19
2014
Pratiksha

ARMY INSTITUTE OF LAW CLASS MOOT COURT, 2023-24

BEFORE THE CHILDREN’S COURT OF CHANDIGARH,

PUNJAB
UNDER SECTION 19 OF JUVENILE JUSTICE ACT, 2015

CRIMINAL APPEAL NO.______/2023

IN THE MATTER OF

STATE OF PUNJAB………………………………………..…. PROSECUTION

V.

X (THE CHILD IN CONFLICT WITH THE LAW)…….…..………DEFENDANT

MEMORANDUM ON BEHALF OF THE DEFENDANT

DRAWN AND FILED BY THE COUNSELS FOR THE DEFENDANT
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TABLE OF CONTENT

LIST OF ABBREVIATIONS........................................................................................................... 2

TABLE OF CASES ....................................................................................................................... 4

INDEX OF AUTHORITIES ............................................................................................................ 6

STATEMENT OF JURISDICTION .................................................................................................. 7

STATEMENT OF FACTS .............................................................................................................. 8

STATEMENT OF ISSUES .............................................................................................................. 9

SUMMARY OF ARGUMENTS ..................................................................................................... 10

ARGUMENT ADVANCED............................................................................................................. I

CONTENTION 1: THAT ‘X’ THE CHILD IN CONFLICT WITH LAW SHOULD BE

TRIED AS A CHILD AND NOT AS AN ADULT ............................................................. I

1.1 GUIDELINES ISSUED BY COURT ............................................................................. I

1.2 THE UNION OF INDIA IS SIGNATORY TO MULTIPLE INTERNATIONAL

CONVENTIONS FOR CHILD REFORMATION ............................................................VI

1.3 THE OBJECTIVE OF THE JJ ACT, 2015 IS REFORMATIVE; NOT PUNITIVE. VII

PRAYER .................................................................................................................................... 21

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LIST OF ABBREVIATIONS

ABBREVIATION EXTENSION

& And

¶ Paragraph

¶¶ Paragraphs

AIHC All India High Court Cases

AIR All India Reporter

All Allahabad High Court

Anr. Another

Art. Article

Cal Calcutta High Court

Cr.P.C Code of Criminal Procedure

Cri LJ/ Cr LJ Criminal Law Journal

Del Delhi High Court

DW Defence Witness

Ed. Edition

HC High Court

Ibid. Ibidem

No. Number

Ors. Others

P&H Punjab and Haryana High Court

Pvt. Private

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PW Prosecution Witness

SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Reports

Sec. Section

Supp. Supplementary

UOI Union of India

v. Versus

WLR Weekly Law Reports

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TABLE OF CASES

NAME OF THE CASE CITATION

A.D.M Jabalpur v Union of India AIR 1976 SC 1207

Abuzar Hossain v. State of West Bengal Criminal Appeal No. 1193 of 2006

Barun Chandra Thakur v. Master Bholu CRIMINAL APPEAL NO.951/2022

Essa @ Anjun Abdul Razak Memon v. State of Criminal Appeal No. 1178 of 2007
Maharashtra

Hari Ram v. State of Rajasthan S.L.P. (Crl.) no. 3336 of 2006

Indira Kaur v. Sheo Lal Kapoor AIR 1988 SC 1074

IPH v. The Chief Constable, South Wales (1987) Criminal LR 42

Police Headquarters
J.M. (A Minor) v. Runeckles (1984) 79 Cr. App.R. 255

Jitendra Singh @ Babboo Sungh & Anr v. State Criminal Appeal No. 763 of 2003
of UP

Jurnail Singh v. State of Haryana Criminal Appeal No. 1209 of 2010

Kanhaiya Lal v. Manna Lal AIR 1976 SC 1886

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Mahabir Prasad v State of U.P. AIR 1978 SC 1302

Mrs. X v. Union of India (SC), 2017 AIR (SCW) 1055

Mumtaz Ahmed Nazir Khan v. The State of Criminal Appeal no. 1153 of 2018
Maharashtra
Parmendra Chaudhary vs. The State of Bihar (2017) 2 PCCR 238 (PHC)

Pratap Singh v. State of Jharkhand Appeal (crl) 219 of 2005

Railway Board v. Chandrima Das AIR 2000 SC 988

Ram Jethmalani v. Union of India (2011) 8 SCC 1

Shilpa Mittal v. State(NCT of Delhi) and Anr AIR 2020 SC 405

State of A.P. v. Bathu Prakasa Rao AIR 1976 SC 1845

The Queen v. Michael ALF Mccormick (2002) QDC 343

X v. State of Himachal Pradesh. and others CWP No. 2250 of 2017

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INDEX OF AUTHORITIES

STATUTES
• Juvenile Justice (Care and Protection of Children) Act, 2015
• Code of Criminal Procedure, 1973

BOOKS AND DIGESTS

• JUVENILE JUSTICE IN GLOBAL PERSPECTIVE, FRANKLINE E ZIMRING

• JUVENILE JUSTICE PERTAINING TO CHILDREN IN NEED OF CARE AND PROTECTION, DR.
KABITA CHAKROBATY
• JUVENILE JUSTICE ACT, 2015, DR. N MAHESHWARA SWAMY

DICTIONARIES, ONLINE DATABASES & WEBSITE

• www.scconline.com
• www.manupatrafast.com
• Livelaw.in

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STATEMENT OF JURISDICTION

The Defendant have approached the Hon’ble Children’s Court of India under Section 19 of
the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereunder referred as “JJ
Act, 2015”)

19. Powers of Children’s Court.—(1) After the receipt of preliminary assessment from the
Board under section 15, the Children’s Court may decide that—

(i) there is a need for trial of the child as an adult as per the provisions of the Code of
Criminal Procedure, 1973 (2 of 1974) and pass appropriate orders after trial subject to the
provisions of this section and section 21, considering the special needs of the child, the
tenets of fair trial and maintaining a child friendly atmosphere;

(ii) there is no need for trial of the child as an adult and may conduct an inquiry as a Board
and pass appropriate orders in accordance with the provisions of section 18.

(2) The Children’s Court shall ensure that the final order, with regard to a child in conflict
with law, shall include an individual care plan for the rehabilitation of child, including
follow up by the probation officer or the District Child Protection Unit or a social worker.

(3) The Children’s Court shall ensure that the child who is found to be in conflict with law is
sent to a place of safety till he attains the age of twenty-one years and thereafter, the person
shall be transferred to a jail:

Provided that the reformative services including educational services, skill development,
alternative therapy such as counselling, behaviour modification therapy, and psychiatric
support shall be provided to the child during the period of his stay in the place of safety.

(4) The Children’s Court shall ensure that there is a periodic follow up report every year by
the probation officer or the District Child Protection Unit or a social worker, as required, to
evaluate the progress of the child in the place of safety and to ensure that there is no ill-
treatment to the child in any form.

(5) The reports under sub-section (4) shall be forwarded to the Children’s Court for record
and follow up, as may be required.

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STATEMENT OF FACTS

1. ‘X’ the child in conflict with law is a 16-year-old boy residing in the slum area of
Chandigarh sector 25.
2. He has a history of legal troubles, having been in and out of juvenile detention since
the age of 11.
3. He has received counseling during his stays in the juvenile home.
4. Recently, he joined the 'Badshah' gang, which specializes in stealing cars and selling
their parts.
5. He is the youngest member of the gang, with all other members being in their late 20s.
6. On the night of 27/08/23, the police received a call about a suspicious group near Mr.
X's house.
7. When the police arrived, they managed to apprehend ‘X’, but six other gang members
escaped.
8. Mr. X was found with serious injuries, including two stab wounds, a broken leg, and a
fractured jaw.
9. Due to X's juvenile status, he was transferred to a juvenile home rather than a lock-up.
10. After careful consideration, authorities decided to charge ‘X’ as an adult for theft,
aiming to set an example.

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STATEMENT OF ISSUES

ISSUE 1:

WHETHER ‘X’ SHOULD BE TRIED AS AN ADULT OR NOT?

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SUMMARY OF ARGUMENTS

ISSUE 1: THAT ‘X’ SHOULD NOT BE TRIED AS AN ADULT

It is most humbly submitted before this Hon’ble Session Court that considering the absence of
a minimum prescribed sentence for dacoity in the Indian Penal Code, the offence committed
by the child in conflict with the law does not qualify as a heinous offence under the Juvenile
Justice Act. Consequently, he should be tried in accordance with the provisions governing
children in conflict with the law, and not as an adult.

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ARGUMENT ADVANCED

CONTENTION 1: THAT ‘X’ THE CHILD IN CONFLICT WITH LAW SHOULD BE TRIED AS A
CHILD AND NOT AS AN ADULT
1. I respectfully submit before this Hon’ble Court that, as per the Juvenile Justice Act, a child
in conflict with the law may only be tried as an adult if they have committed a heinous
offence and are either sixteen years old or older.

2. The relevant provisions are as follows:

15. Preliminary assessment into heinous offences by Board.—(1) In case of a heinous
offence alleged to have been committed by a child, who has completed or is above the age
of sixteen years, the Board shall conduct a preliminary assessment with regard to his
mental and physical capacity to commit such offence, ability to understand the
consequences of the offence and the circumstances in which he allegedly committed the
offence, and may pass an order in accordance with the provisions of sub-section (3) of
section 18: Provided that for such an assessment, the Board may take the assistance of
experienced psychologists or psycho-social workers or other experts.
3. In the case at hand, the child in conflict with the law is aged 16, and stands accused of
committing theft,
4. The Juvenile Justice Act categorizes offences into three tiers: petty offences, serious
offences, and heinous offences, each defined by the severity of the prescribed punishment.
This distinction is pivotal in determining the appropriate legal treatment of the child.
2. Definitions.— In this Act, unless the context otherwise requires,—
(33) “heinous offences” includes the offences for which the minimum punishment under
the Indian Penal Code (45 of 1860) or any other law for the time being in force is
imprisonment for seven years or more;
(45) “petty offences” includes the offences for which the maximum punishment under the
Indian Penal Code (45 of 1860) or any other law for the time being in force is
imprisonment up to three years;
(54) “serious offences” includes the offences for which the punishment under the Indian
Penal Code (45 of 1860) or any other law for the time being in force, is imprisonment
between three to seven years;
5. In this context, it is imperative to assess the prescribed punishment for dacoity. Section
395 of the Indian Penal Code, which governs the offence, provides for imprisonment for

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life or rigorous imprisonment for up to ten years. Regrettably, there is no stipulated

minimum punishment for dacoity under this section.
6. It is incumbent upon the Court to note that, under the Juvenile Justice Act, heinous offences
are defined as those carrying a minimum imprisonment term of seven years or more. Given
the absence of such a specified minimum sentence in Section 395 of the Indian Penal Code,
it does not fall within the ambit of a heinous offence as per the Act.
7. The decision in the case of Shilpa Mittal v. State (NCT of Delhi) and Anr.1, delivered by
the Hon’ble Delhi High Court, is pertinent in this context. The Court emphasized that
offences prescribing maximum sentences exceeding seven years but lacking a specified
minimum sentence or providing a minimum sentence of less than seven years’
imprisonment are not encompassed by Section 2(33) of the Juvenile Justice Act.
“Para 35. Though we are of the view that the word “minimum” from the definition as
surplusage, yet we are duty-bound to decide as to how the children who have committed
an offence failing within the 4th category should be dealt with. We are conscious of the
view expressed by us and above that this Court cannot legislate. However, if we do not
deal with this issue there would be no guidance to the Juvenile Justice Boards to deal with
children who have committed such offences which definitely are serious, or maybe more
than serious offences, even if they are not heinous offences. Since two views are possible
we would prefer to take a view which is in favour of children and, in our opinion, the
legislature should taken the call in this matter, but till it does so, exercise of powers
conferred under Article 142 of the Constitution, we direct that from the date when the 2015
Act came into force, all children who have committed offences falling in the 4thcaregory
shall be dealt with in the same manner as children who have committed “serious
offences”.”
8. In light of the above, it is my humble submission that, considering the absence of a
minimum prescribed sentence for dacoity in the Indian Penal Code, the offence committed
by the child in conflict with the law does not qualify as a heinous offence under the Juvenile
Justice Act. Consequently, he should be tried in accordance with the provisions governing
children in conflict with the law, and not as an adult.

1
AIR 2020 SC 405

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1.1 GUIDELINES ISSUED BY COURT

9. It is submitted that the court should consider the guidelines issued in Barun Chandra
Thakur as well as guidelines issued by NCPCR. It submitted that it is a duty of the courts
while making the preliminary assessment under sections 15 and 19 of the J.J. Act, to
adjudge the magnitude of participation of the juvenile in crime:
1) Whether he was physically and mentally capable to commit the entire crime without
the presence and role of adult accused;
2) In case of juvenile's personal interest for committing the crime, if yes, what
bounty/money/outcome did the juvenile receive;
3) Whether the juvenile was driven away for committing the crime under the influence
of some person or co-accused.
4) Whether the juvenile, at the time of committing the crime:
a) knew the consequences of his act on his life;
b) his family's future;
c) the impact on the complainant and his family;
d) the litigating consequences;
e) outcome of the act;
f) the juvenile's understanding of whether he was committing serious wrong, or it
was just a mischievous act and moral wrong;
10. suggested that the factors, which are to be borne in mind while considering the criteria of
mental and physical capacity, for the Court would be to see whether the juvenile has taken
serious participation in the offence, in a way that the juvenile is mentally and physically
fit and capable to commit such offence, even if, the other adult co-accused, in case of group
offence, have not participated in the commission of offence.
11. In the present case, it is respectfully urged that the Court should also consider the socio-
economic background of the child in conflict with the law, who lives in a slum area and
has no wealthy family background. It is pertinent to acknowledge that the circumstances
surrounding the juvenile, including familial and societal influences, can significantly
impact his actions. Notably, all the co-accused are in their twenties, while the juvenile is a
mere sixteen years old. This age disparity raises a legitimate concern about the potential
for undue influence or coercion exerted upon the juvenile by his older associates. Such a
power dynamic warrants careful consideration in the determination of the juvenile's
culpability.

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12. Further, the counsel lays emphasis on the factum of ability to understand the consequences
of offence, the satisfaction should be that the juvenile has committed a serious and
conscious wrong and not moral wrong in mischievous or naughty childish mindset; or
whether the juvenile is intentionally lying in front of the J.J. Board or Children's Court
under the influence of the fear of the police or other person, or the society, or in case of
personal gain, dishonestly lying, to escape from the process of law.
13. In the case of Barun Chandra Thakur v. Master Bholu2, the Hon'ble Supreme Court while
dealing with section 15 of the J.J. Act for preliminary assessment of child in conflict with
law, observed as under:
“65. While considering a child as an adult one needs to look at his/her physical maturity,
cognitive abilities, social and emotional competencies. It must be mentioned here that from
a neurobiological perspective, the development of cognitive, behavioural attributes like
the ability to delay gratification, decision making, risk taking, impulsivity, judgment, etc.
continues until the early 20s. It is, therefore, all the more important that such assessment
is made to distinguish such attributes between a child and an adult.
66. Cognitive maturation is highly dependent on hereditary factors. Emotional
development is less likely to affect cognitive maturation. However, if emotions are too
intense and the child is unable to regulate emotions effectively, then intellectual
insight/knowledge may take a back seat.
70. A child with average intelligence/IQ will have the intellectual knowledge of the
consequences of his actions. But whether or not he is able to control himself or his actions
will depend on his level of emotional competence. For example, risky driving may result
in an accident. But if emotional competence is not high, the urge for thrill seeking may get
the better of his intellectual understanding.
71. Children may be geared towards more instant gratification and may not be able to
deeply understand the long-term consequences of their actions. They are also more likely
to be influenced by emotion rather than reason. Research shows that young people do
know risks to themselves. Despite this knowledge, adolescents engage in riskier behaviour
than adults (such as drug and alcohol use, unsafe sexual activity, dangerous driving and/or
delinquent behaviour). While they do consider risks cognitively (by weighing up the
potential risks and rewards of a particular act), their decisions/actions may be more
heavily influenced by social (e.g. peer influences) and/or emotional (e.g. impulsive)

2
Criminal Appeal No. 950/2022

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tendencies. In addition, the lack of experience coupled with the child's limited ability to
deeply understand the long-term consequences of their actions can lead to
impulsive/reckless decision making.
14. In Barun Chandra Thakur (supra), the Hon'ble Apex Court has referred to the factum of
Cognitive maturation, observing intense emotion, likely to affect the cognitive maturation,
the child with average IQ will have intellectual knowledge of the consequences of his
action, but whether or nor, he will be able to control himself or his actions will depend on
his level of emotional competence.
15. Emotional Intelligence otherwise known as quotient-EQ., is the ability to understand, use
and manage emotions in positive ways to relieve stress, commensurate effectively,
empathize with others, overcome challenges and defuse conflict.
16. While IQ-Intelligence Quotient is a measure of your ability to solve problems and think
logically. EQ-Emotional Intelligence Quotient, measures your ability to understand and
manage emotions.
17. The whole concept of emotional intelligence (EQ) was originally introduced by
Psychologist Daniel Gokman in his 1995 book “Emotional Intelligence : why it can matter
more than IQ”, which is now considered a milestone achievement in the categorization
and study of human emotions.
18. Poor EQ is linked to crime and other unethical behaviours. Unfortunately, there is a direct
connection between poor emotional skills and the rising crime rate. Children who have
poor emotional skills become social outcasts at a very young age. They might be the class
bully because of a hot temper. They may have learned to reacts with fists rather than with
reason. The path to crime starts early in life, while there is no doubt that family and
environment are strong contributors, the common threat is poor emotional and social skills.
Emotional Quotient as the product of wisdom (w) and IQ, the relationship can be expressed
mathematically as EQ = W × IQ.
19. In Barun Chandra Thakur (supra), while appreciating the world acknowledgment of
treating children in conflict with law differently than adult in conflict with law, the Apex
Court has dealt with the aspect of ‘child psychology’ and need to conduct a meticulous
psychological evaluation in following paragraphs:
“74. The world acknowledges that children in conflict with law should be treated
differently than adults in conflict with law. The reason is that the mind of the child has not
attained maturity and it is still developing. Therefore, the child should be tested on
different parameters and should be given an opportunity of being brought into the main

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stream if, during his juvenility, has acted in conflict with law. To understand psychology
of the child, huge rounds of studies have been made not only recently but from age old
times and child psychology is a subject which is being studied world over and there are
institutes specifically dealing with the developments and research on the said subject. The
enactments dealing with children are enacted world over.
75. It is to be noted that child psychology is a specialised branch of development
psychology, its genesis is based on the premise that children and adults have a different
thought process. The individualised assessment of adolescent mental capacity and ability
to understand the consequences of the offence is one of the most crucial determinants of
the preliminary assessment mandated by section 15 of the Act, 2015. The report of the
preliminary assessment decides the germane question of transferring the case of a child
between 16 to 18 years of age to the Children's Court. This evaluation of ‘mental capacity
and ability to understand the consequences’ of the child in conflict with law can, in no
way, be relegated to the status of a perfunctory and a routine task. The process of taking
a decision on which the fate of the child in conflict with law precariously rests, should not
be taken without conducting a meticulous psychological evaluation.”
20. The Apex Court thus, expressed the need of formulating the guidelines, to assist the J.J.
Board making preliminary assessment under section 15 of the J.J. Act, by the authority
concern, in following lines:
“87. Before concluding, we may indicate that the task of preliminary assessment under
section 15 of the Act, 2015 is a delicate task with requirement of expertise and has its own
implications as regards trial of the case. In this view of the matter, it appears expedient
that appropriate and specific guidelines in this regard are put in place. Without much
elaboration, we leave it open for the Central Government and the National Commission
for Protection of Child Rights and the State Commission for Protection of Child Rights to
consider issuing guidelines or directions in this regard which may assist and facilitate the
Board in making the preliminary assessment under section 15 of the Act, 2015.”
21. It would be required to be noted that expression ‘preliminary assessment into heinous
offences by the Board’ used in section 15 of the J.J. Act, 2015, imposes upon the Board to
pass an order, to consider, whether there is a need for a trial of the said child as an adult.
Under section 18(3) of the J.J. Act, the Board shall transfer the trial of the case to the
Children's Court having jurisdiction to try such offences. As has been observed in
paragraph no. 75 of the Barun Chandra Thakur (supra), the assessment of adolescent
mental capacity and ability to understand the consequences of the offence of the child in

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conflict with law is one of the most crucial determinants of the preliminary assessment
mandated by section 15 of the J.J. Act. This evaluation of ‘mental capacity and ability to
understand the consequences’ of the child in conflict with law can, in no way, be relegated
to the status of a perfunctory and a routine task. The process of taking a decision on which
the fate of the child in conflict with law precariously rests, should not be taken without
conducting a meticulous psychological evaluation.
22. The conclusion arrived at in Barun Chandra Thakur (supra) in context with sections 15
and 19 read with section 18(3) of the J.J. Act, is as under:
“81. We are conscious of the fact that the power to make the preliminary assessment is
vested in the Board and also the Children's Court under sections 15 and 19 respectively.
The Children's Court, on its own, upon a matter being referred to under section 18(3),
would still examine whether the child is to be tried as an adult or not, and if it would come
to the conclusion that the child was not to be tried as an adult then it would itself conduct
an inquiry as a Board and pass appropriate orders under section 18. Thus, the power to
carry out the preliminary assessment rests with the Board and the Children's Court. This
Court cannot delve upon the exercise of preliminary assessment. This Court will only
examine as to whether the preliminary assessment has been carried out as required under
law or not. Even the High Court, exercising revisionary power under section 102, would
test the decision of the Board or the Children's Court with respect to its legality or
propriety only. In the present case, the High Court has, after considering limited material
on record, arrived at a conclusion that the matter required reconsideration and for which,
it has remanded the matter to the Board with further directions to take additional evidence
and also to afford adequate opportunity to the child before taking a fresh decision.”
23. In the instant matter, it is disconcerting to note that despite the repeated interventions and
counseling provided during the juvenile's stays in the juvenile homes, he has been
subsequently involved in criminal activities. This recurrence raises legitimate doubts about
the effectiveness of the rehabilitation efforts thus far. It begs the question: has the juvenile
truly internalized the gravity of his actions, or does his continued involvement in unlawful
activities indicate a deeper underlying issue?

24. The pattern of reoffending subsequent to periods of rehabilitation underscores the need for
a more comprehensive evaluation. It suggests that the juvenile may face challenges in fully
understanding the consequences of his behavior, despite the best efforts of the juvenile

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justice system. This is a critical consideration in determining the appropriate course of

action for the juvenile.

25. Given this concerning trend, it is the humble submission of the defense that trying the
juvenile as an adult may not be the most judicious approach. Instead, a more nuanced and
tailored approach, aligned with the principles of the Juvenile Justice Act, may be
warranted. This approach would take into account not only the gravity of the offense, but
also the unique circumstances and challenges faced by the juvenile.

1.2 THE UNION OF INDIA IS SIGNATORY TO MULTIPLE INTERNATIONAL

CONVENTIONS FOR CHILD REFORMATION

26. It is humbly submitted that the object clause of the present act states thus: "And whereas,
the Government of India has acceded on the 11th December, 1992 to the Convention on
the Rights of the Child, adopted by the General Assembly of United Nations which has
prescribed a set of standards to be adhered to by all State parties in securing the best interest
of child." IV. V. VI. Moreover, Article 37(a) of the CRC prohibits the imposition of capital
punishment and life imprisonment without possibility of release on offenders below 18
years of age. Thus, it is submitted before this Hon‟ble Court that Article 37 of CRC
specifically states that a child below the age of eighteen years should not be punished in a
cruel or harmful way and should not be held behind the bars along with adults and the
present act duly follows the same.
27. That, the CRC further obliges State Parties to establish a minimum age below which
children shall be presumed not to have the capacity to infringe the penal law (Article 40(3)
(a)).
28. It is humbly submitted before this Hon‟ble Court that Indica is a signatory of Beijing Rules
and Havana Rules which create an obligation upon it not to defeat the scope and purpose
of a treaty3. Rule 2.2(a)4 defines a juvenile as a child or young person who, under the
respective legal system, may be dealt with for an offence differently than an adult. Rule
4.15 set out below mandates Member States to refrain from fixing a minimum age of

3
Article 18 of the Vienna Convention on the Law of Treaties.
4
United Nations Standard Minimum Rules for the Administration of Juvenile Justice ("The Beijing
Rules")
5
Ibid

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criminal responsibility that is too low, bearing in mind the facts of emotional, mental and
intellectual maturity.
29. That, the Justice Verma Committee had warned that reducing the age of juveniles below
18 would violate various Indian guarantees under international institutions6. It is urged that
the United Nations Standard Minimum Rules for the Administration of Juvenile Justice
1985 or the Beijing Rules, requires a child or a young person, accused of an offence, to be
treated differently from an adult. Similarly, Rule 11(a) of the Havana Rules, 1990 define
a juvenile as every person under the age of 18, and allow national laws to determine a
minimum age below which such person will not be detained. Therefore, it is humbly
submitted before this Hon’ble Court that the present act is in tunes with the International
Commitments entered by India.
30. In the case of Ram Jethmalani v. Union of India7, the SC recognized that the Vienna
Convention codifies many principles of customary international law. The rule of
Customary International Law which are not contrary to the municipal law shall be deemed
to have been incorporated in the domestic law and shall be followed by the courts of law8.
Hence, Vienna Convention being a customary law its provision ought to be adhered by the
Indian Courts and it binding because of the principle of pacta sunt servanda. The counsel
humbly submits that the JJ Act is in consonance to the UN Convention on the Rights of
the Child which is a comprehensive and internationally binding agreement on the rights of
children. It was adopted by the United Nations General Assembly in 1989. The definition
of child as envisaged in Article 1 states: "For the purposes of the present Convention, a
child means every human being below the age of eighteen years unless under the law
applicable to the child, majority is attained earlier."

1.3 THE OBJECTIVE OF THE JJ ACT, 2015 IS REFORMATIVE; NOT PUNITIVE.

31. It is humbly submitted that the law of juvenile justice stands on the principles of
restorative justice and any digression from the same would be detrimental to the right of
the children and in contravention with the principle as enunciated under Article 15(3) of
the Constitution. It is respectfully submitted that the impugned Act seeks to punish the

6
Justice J.S Verma, Justice Leila Seth, Gopal Subramanium, Report of the Committee on Amendments
to Criminal Law, 2013 available at
http://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20committe%20report.p
df
7
Ram Jethmalani v. Union of India, (2011) 8 SCC 1
8
A.D.M. Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207

MEMORIAL ON BEHALF OF DEFENDANT

 FOURTH YEAR CLASS MOOT COURT, 2023-24
P a g e | VIII

child in conflict with law for the failure of the Society at large in providing the child with
adequate care and Protection. Furthermore, it is submitted that, the main objective of the
act is to provide for care, protection, treatment, development and rehabilitation of the
neglected or the delinquent juveniles. 36 So, the essence of the act is restorative and not
retributive, providing for rehabilitation and integration of children in conflict with law
back into the mainstream society.
32. That, The Juvenile Justice System in India is made on the basis of three main
assumptions:-
33. Firstly, young offenders should not be tried in courts , rather they should be corrected in
all the best possible ways. Secondly, they should not be punished by the courts, but they
should get a chance to reform. Thirdly, the trial for child in conflict with law23 should be
based on non-penal treatment through the communities based upon the social control
agencies for e.g. Observation Homes and Special Homes.
34. Also, in the case of Parmendra Chaudhary vs. The State of Bihar9, paragraphs nos. 7 and
8 it was held that:-
“7. Be that as it may, on merits. I find force in the submission of the learned counsel for
the petitioner. The preamble of the Act reads as under:-
“An Act to consolidate and amend the law relating to juveniles in conflict with law and
children in need of care and protection, by providing for proper care, protection and
treatment by catering to their development needs, and by adopting a child-friendly
approach in the adjudication and deposition of matters in the best interest of children and
for their ultimate rehabilitation and for matters connected therewith or incidental
thereto.”
35. The same was upheld in the case of Mumtaz Ahmed Nazir Khan v. The State of
Maharashtra10.
36. The counsel further relies on judgments Foreign Court rendered in J.M. (A Minor) v.
Runeckles11, , contending that the participation of juvenile in the offence and then his
understanding of offence will decide whether he/she shall be transferred to Adult or
Juvenile Court. Mr. Jain also relied on the case of IPH v. The Chief Constable, South
Wales Police Headquarters12, to submit that the participation of juvenile in the offence,

9
(2017) 2 PCCR 238 (PHC)
10
Criminal Appeal no. 1153 of 2018
11
(1984) 79 Cr. App.R. 255
12
(1987) Criminal LR 42,

MEMORIAL ON BEHALF OF DEFENDANT

 FOURTH YEAR CLASS MOOT COURT, 2023-24
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his understanding of the crime as a serious wrong and not only moral wrong (mischievous
or naughty act) will decide whether he/she shall be transferred to Adult or Juvenile Court.
Mr. Jain further relied on the judgment of The Queen v. Michael ALF Mccormick13, and
stated that the juvenile was given the benefit of doubt because of the inappropriate
reporting of the response of the juvenile by the police officer. Mr. Jain submitted that had
the juvenile being given the questionnaire to answer in detail or the police officer reported
the actual detailed answer, the learned Court could have evaluated it properly.
37. In light of the comprehensive arguments presented, it is earnestly prayed before this
Hon'ble Court to consider the provisions of the Juvenile Justice Act, 2015 and the
international conventions and treaties to which India is a signatory. The spirit of these
conventions emphasizes the special treatment and protection of children in conflict with
the law, steering away from punitive measures and instead focusing on reformative and
restorative justice.
38. Moreover, the neurological and psychological evidence unequivocally supports the
premise that adolescents, due to the ongoing development of their brains, exhibit a
different level of cognitive maturity compared to adults. This scientific insight underscores
the critical importance of treating juvenile offenders with a distinct approach, one that
acknowledges their evolving capacity for understanding consequences and making
informed decisions.
39. Furthermore, the inadequacy of financial resources allocated for child welfare and
rehabilitative services must be taken into account. It is imperative to recognize that without
the necessary funding and infrastructure, the envisioned reformative services, including
psychological and psychiatric support, would remain largely theoretical.
40. Given the collective weight of these arguments and the international commitments
undertaken by India, it is fervently prayed before this Hon'ble Court to adjudicate the child
in conflict with the law in accordance with the Juvenile Justice Act, 2015, and not as an
adult. This approach is not only in consonance with the international legal framework but
also aligns with the principles of justice, compassion, and the best interests of the child.

13
(2002) QDC 343

MEMORIAL ON BEHALF OF DEFENDANT

 FOURTH YEAR CLASS MOOT COURT, 2023-24
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PRAYER

In the light of the facts of the case, issues raised, arguments advanced and authorities cited,
the Counsels on behalf of the Defendant humbly pray before the Hon’ble Children’s Court of
Chandigarh, Punjab to kindly adjudge and declare that: -

That the child in conflict with law should be tried as a child and not as an adult.

AND/OR

Pass any other order which the bench deems fit in the best interest of Justice, Equity and
Good Conscience, and for this act of kindness the Counsels on behalf of the Defendant as in
duty bound shall forever pray.

All of which is respectfully submitted

Sd/-

Counsels for Defendant

MEMORIAL ON BEHALF OF DEFENDANT