Written by Vani Paicker, pursuing Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution offered by Lawsikho as part of his coursework. Vani is currently working for a venture capital fund and is a graduate in law from ILS Law College, Pune.
He saw the little boy standing in the corridor. They knew each other. He asked the little boy to help him, but suddenly felt restless, so he ran away. When he returned, the little boy was still there, waiting for him, to help him. That is when he decided to kill him. This was not just another day at school. The accused was a 16-year old Class 11 student and the little boy, the victim was a 7-year old class 2 student.
- Can this 16-year old boy who murdered a 7-year old, be tried as an adult or will he be considered as a juvenile and be tried as one?
- What is more important, the age of the offender or the seriousness of the crime committed?
Traditionally, a person below the age of 18 is tried as a juvenile under the Juvenile Justice (Care and Protection of Children) Act, 2015 (“Act”). However, under certain circumstances, where the severity of the punishment as prescribed under the Act fails to justify the acts of the juvenile offender, the Act provides that the juvenile can be tried as an adult.
The Act re-enacted the existing Juvenile Justice (Care and Protection of Children) Act, 2000 (“JJ Act”) to make wide-ranging necessities to deal with delinquent children and orphaned children. It introduced circumstances and procedures for trying juveniles in conflict with law, involved in heinous offences as adults. The Act was passed taking into consideration the standards prescribed by various conventions and rules prescribed by the United Nations with respect to the rights of children, their protection and administration of justice.
The Act was passed amidst debates and arguments from all sections of the society. The primary objective of the Act is to ensure the general care and protection of children by reforming them and reintegrate them into the society. Although the intent of the Act is not to punish a child but to ensure their rehabilitation, there was a huge hue and cry post the Nirbhaya case for more stringent punishment with respect to juveniles involved in serious crimes. Bowing to the pressure, the legislature amended the JJ Act to adequately address the crimes committed by the juvenile offenders. It was understandable that a case pertaining to juvenile offenders cannot merely be decided on basis of the age of the juvenile, but it should also take into consideration the criminal offense committed by the juvenile. The amendment introduced the concept of heinous crimes and the procedure for trying juvenile caught doing the heinous crimes as an adult.
The failings in the JJ Act was put to the spotlight by the numerous cases where the juveniles sought protection under the JJ Act and were considered as having gone awry rather than a person with a criminal intent. The offenders under the JJ Act are referred to remand homes for a period of 3 years and upon their release, their criminal records are deleted, to ensure that the juvenile can be restored to the society without anyone being made aware of the juvenile’s past delinquent records.
However, considering the grave nature of offences committed by the juveniles and the protection sought under the JJ Act, the JJ Act was considered flawed and the level of punishment did not meet the gravity of the crimes committed by the juveniles. It was difficult to conceive that the juvenile offender was not aware of the consequences of his action for offences like murder, rape, etc. It was felt that the JJ Act adopted a lighter touch for people below the age of 18, even though the crime committed was punishable severely under the Indian Penal Code (“IPC”).
Circumstances under which a juvenile can be tried as an adult
The Act has introduced the concept of three categories of offences:
- Petty offences include the offences for which the maximum punishment under the IPC or any other law for the time being in force is imprisonment upto three years;
- Serious offences include the offences for which the punishment under the IPC or any other law for the time being I force, is imprisonment between three to seven years;
- Heinous offences include the offences for which the minimum punishment under the IPC or any other law for the time being in force is imprisonment for seven years or more.
The Act defines ‘heinous crimes’ as those for which the minimum punishment under the IPC or any other law for the time being in force is imprisonment for seven years or more. Since the ambit of the definition covers ‘any other law for the time being in force’, this can also include the following acts:
- The Commission of Sati (Prevention) Act, 1987
- The Narcotic Drugs and Psychotropic Substances Act, 1985
- The Arms Act, 1959
- The Unlawful Activities (Prevention) Act, 1967
- The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989
- The Maharashtra Control of Organised Crime Act, 1999
- Protection of Children from Sexual Offences Act, 2000
- Terrorist and Disruptive Activities (Prevention) Act, 1987
- Food Safety and Standards Act, 2006
The following are the sections of the IPC, under which an offence committed by a juvenile can be considered as a heinous crime:
|S. No||Section in IPC||Provision under the section||Punishment|
|1.||121||Waging or attempting or abetting to wage war against Government of India||Death or Imprisonment for Life|
|2.||195||Giving or fabricating false evidence with intent to procure conviction of offense with imprisonment for life or imprisonment.||Min 7 years|
|3.||302||Punishment for Murder||Death or Imprisonment for Life|
|4.||304B||Dowry Death||Min 7 years and can extend to life|
|5.||311||Punishment for thugs||Imprisonment for Life|
|6.||326A||Acid Attack causing permanent or partial damage/deformity||Min 10 years and upto life|
|7.||370||Trafficking||Min 7 years and upto life|
|8.||376||Rape||Min 7 years and upto life|
|9.||397||Robber, or dacoity, with attempt to cause death or grievous hurt||Min 7 years|
|10.||398||Attempt to commit robbery or dacoity when armed with deadly weapon||Min 7 years|
So, under the Act, a juvenile offender, between the age of 16-18 can be tried as an adult for any of the offences as mentioned above, together with any of the offences under any other act in force, wherein the minimum punishment is 7 years or more.
Recent case study
Can juveniles be punished for offences, where the minimum punishment under IPC or applicable law can extend to 7 years?
A Board in Sangli after conducting a psychology assessment of three 17-year old boys and subsequent interactions with the boys concluded that the boys were adults and knew and understood the consequences of their actions. The three boys were charged under section 307 of the IPC, attempt to murder.
The case was then referred to the Children’s Court by the Board. The said order was challenged in the Bombay High Court and the Bombay High Court observed as follows:
- that the IPC or any other applicable law, should prescribe the minimum punishment for a crime as seven years for the offence to be classified as ‘heinous crime’. Under section 307 of the IPC (Attempt to murder), no minimum punishment is prescribed but the punishment may extend to 10 years and fine.
Section 307 of the IPC has been reproduced below:
Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty or murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to 104 [imprisonment for life], or to such punishment as is here in before mentioned.
2. Justice Bhatkar concluded that “Due to the benchmark of minimum punishment of 7 years or more, section 307 of the IPC cannot fall within the ambit of heinous crimes.”
Procedure for trying a juvenile as an adult
Under the Act, the state government shall constitute a Juvenile Justice Board (“Board”) in every district. The Board shall constitute of a Metropolitan Magistrate or a Judicial Magistrate of First Class or Chief Judicial Magistrate with at least three years’ experience and two social workers of whom at least one is a woman.
As per section 15 of the Act, a juvenile offender, between the age of 16-18, who has committed a heinous offence maybe tried as an adult by putting him to trial under the criminal justice system. However, a juvenile offender can only be tried as an adult under the Act, after the Board (with the assistance of psychologists or psycho-social workers or other experts) has assessed the juvenile offender on the following:
- The capability of the juvenile to commit such a murder (mens rea and physical capacity);
- His ability to comprehend the consequences of the offence committed;
- The circumstances in which the offence was committed.
The Board’s responsibility is to recognize whether the offending child can commit a heinous offence and whether the offending child understands the consequences of the offence committed. The Board must complete its assessment within a period of 3 months from the date of the child being produced before the Board. After the assessment, if the Board concludes that the juvenile offender has committed the crime with knowledge and intent required to commit a heinous offence, then the Board may order transfer of the case to the Children’s Court.
Basis the recommendation from the Board, the Children’s Court may determine whether there is a need for trying the child as an adult under the provisions of the Code of Criminal Procedure, 1973 or not. If the Children’s Court does consider that the child must be tried as an adult, then it shall pass appropriate orders taking into consideration the doctrine of fair trial and maintaining a child friendly atmosphere.
Tried as an adult around the world
England and Wales
A separate youth court tries juveniles. Juveniles may be tried as adults in a limited number of serious offences like sexual assault, child sex offences committed, prohibited firearms offences [Powers of Criminal Courts (Sentencing) Act 2000]. If a juvenile is jointly charged with an adult, then they will be tried in an adult court, except if it is necessary in the interests of justice that they both be tried in Crown Court [Magistrates Court Act, 1980]. Where a person aged under 18 is convicted of murder, he must be sentenced to detention at Her Majesty’s pleasure
Children between the age of 14 -18 are tried in the youth court. It is considered that the children in this age bracket understand the actions committed and the consequences of the actions committed. The imprisonment for the juveniles cannot be for a period more than 10 years and less than 6 months. However, if the juvenile is considered a very dangerous young criminal, then indefinite detention is allowed [Children’s Rights, Germany].
In the US, anyone 13 years old and above can be tried as an adult if he or she has a record of previously breaking the law or commits a serious crime. Children between the change of 15-16 are tried as adults for certain offenses, including murder, aggravated criminal sexual assault, and armed robbery with a firearm.
While France does not have the same system of transferring juveniles to adult criminal courts as does the United States, French judges can use the severity of the crime a juvenile committed in determining the juvenile offender’s sentence.
In Netherlands, young offenders aged 16 to 22 can be tried either as a juvenile or as an adult, under adolescent criminal law.
No country however has a provision of death penalty for juveniles.
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