Friday, 19 April 2019

Whether a child, who has not committed heinous offence can be transferred to Children's Court?

 The legal issue is raised as follows :
Whether a child, who has not committed heinous offence can
be transferred to Children's Court?
 Under section 15 of the said Act, preliminary assessment in
respect of offence whether is heinous, is to be made by Juvenile Justice
Board. The word “heinous offences” is defined under section 2 (33) of
the said Act, which states as follows :
“2 (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” .
10. Section 2 (54) of the said Act defines “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.

11. Under section 307 of IPC, minimum punishment is not
prescribed, but punishment may extend to ten years and fine, and if
hurt is caused to any person, then punishment can be extended upto
life imprisonment.
12. Thus, due to the benchmark of minimum punishment of 7 years
or more, section 307 of IPC cannot fall within the ambit of heinous
offences.
 In the present case, all the petitioners though are between the
age group of 16 to 18 years, they have not committed heinous offences
and, therefore, their case is not covered under section 15 of the said Act
and no order can be passed under section 18 (3) of the said Act of
transferring the case to Children's Court. Hence, the order dated 19th
January, 2018 passed by Juvenile Justice Board of Sangli District and
also the order dated 13th July, 2018 passed by Juvenile Justice Board,
Sangli are quashed and set aside and the inquiry is to be conducted by
Juvenile Justice Board, Sangli under section 18 (3) of the said Act.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 4044 OF 2018

 Saurabh Jalinder Nangre, Vs State of Maharashtra,

CORAM: MRS.MRIDULA BHATKAR, J.
DATED: DECEMBER 10, 2018



1. Rule. Rule made returnable forthwith. By consent of the parties,
the Petition is heard finally and disposed of at the stage of admission.
2. In this Petition, the order dated 19th January, 2018 passed by
Juvenile Justice Board, Sangli District below exhibit 1 in J.C. No. 145 of
2017 and also the order dated 13th July, 2018 passed by Juvenile
Justice Board, Sangli below exhibit 1 in J.C. No. 145 of 2017 are
challenged.

3. The legal issue is raised as follows :
Whether a child, who has not committed heinous offence can
be transferred to Children's Court?
4. The present petitioners were not adult when an offence of attempt
to commit murder punishable under section 307 of Indian Penal Code,
1860 ( of “IPC”) was committed. They all were about 17 years old, but
below 18 years of their age. Therefore, admittedly, they fall within the
definition of section 2 (12) of the Juvenile Justice (Care and Protection
of Children) Act, 2000 (hereinafter referred to as “the said Act”).
5. Under section 2 (12) of the said Act, “child” means a person who
has not completed eighteen years of age.
6. As all the petitioners were about 17 years old, but below 18 years
old, Juvenile Justice Board referred them to a psychologist for
assessment by an order dated 19th January, 2018. Pursuant to the said
order, assessment report as per section 15 of the said Act was placed
before Juvenile Justice Board, Sangli. The Board has considered the
facts of the case and also interacted with Child in Conflict with Law
(CCL) and made their assessment that the mental as well as physical
capacity of CCL was sufficient to commit crime. All the three petitioners
were aware about the consequences and they have voluntarily
participated in the offence and, therefore, Juvenile Justice Board

transferred the matter to Children's Court as per section 18 (3) of the
said Act.
7. The learned counsel for the petitioners has submitted that the
petitioners being “child” if not have committed heinous crime, then they
are to be tried by Juvenile Justice Board and not to the Children's
Court. He has further submitted that if they are tried by Children's
Court, then prejudice will be caused to them in view of rigor section 19
of the said Act.
8 The learned APP has submitted to the orders passed by this
Court.
9. Under section 15 of the said Act, preliminary assessment in
respect of offence whether is heinous, is to be made by Juvenile Justice
Board. The word “heinous offences” is defined under section 2 (33) of
the said Act, which states as follows :
“2 (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” .
10. Section 2 (54) of the said Act defines “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.

11. Under section 307 of IPC, minimum punishment is not
prescribed, but punishment may extend to ten years and fine, and if
hurt is caused to any person, then punishment can be extended upto
life imprisonment.
12. Thus, due to the benchmark of minimum punishment of 7 years
or more, section 307 of IPC cannot fall within the ambit of heinous
offences.
13. Section 15 of the said Act states as under :
“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 subsection (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.
Explanation.—For the purposes of this section, it is
clarified that preliminary assessment is not a trial, but is
to assess the capacity of such child to commit and
understand the consequences of the alleged offence.
2. Where the Board is satisfied on preliminary
assessment that the matter should be disposed of by
the Board, then the Board shall follow the procedure, as
far as may be, for trial in summons case under the
Code of Criminal Procedure, 1973 (2 of 1974):

Provided that the order of the Board to dispose of the
matter shall be [appealable] under sub-section (2) of
section 101.
Provided further that the assessment under this section
shall be completed within the period specified in section
14”.
Therefore, section 15 of the said Act cannot be attracted. There
was no need to refer to the matter or conducting any preliminary
assessment with regard to the mental or physical capacity to commit
such offences or ability to understand consequences of the offences.
So the case of these petitioners should not have been considered
under section 15 of the said Act, but it straight way falls under section
18 of the said Act, which states that, when a child is found to be in
conflict with law and Juvenile Justice Board is satisfied on inquiry that a
child has committed either a petty offence or a serious offence and if
the child is below 16 years old, then considering the nature of the
offence, Juvenile Justice Board may require to take certain decisions
and pass an order according to section 18 (1) (a) to (g) of the said Act.
14. Section 18 (3) of the said Act states that, on preliminary
assessment under section 15 if heinous offence is committed by a child
between the age group of 16 to 18 years, then Juvenile Justice Board
may transfer the trial of the case of that child to Children's Court .

15. The powers of Children's Court are stated in section 18 of the
said Act. Section 18 (3) of the said Act will definitely cause prejudice to
a child in conflict with law if he is sent to the Children's Court for trial.
16. Under section 19 (3) of the said Act, as pointed out by the learned
counsel for the petitioners, Children's Court may send a child to a place
of safety till he attains the age of 21 years and thereafter, the person
shall be transferred to a jail.
17. Thus, if a child is between 16 to 18 years, is required to send for
inquiry under section 15 of the said Act only when he commits heinous
offence. Juvenile Justice Board has to take the following steps :-
(a) To ascertain the age of the child
Whether he is above 16 years old, but below 18 years
old?
(b) Nature of the offence
(i) Whether the offence is heinous under section 2
(33) of the said Act, which is to be decided on the basis
of minimum punishment of 7 years for the offence;
(ii) Whether it is a heinous offence or a serious
offence or a petty offence;

(iii) In the offence, if minimum punishment is given
for 7 years, then only it is to be considered as heinous
offence under section 2 (33) of the said Act.
(c) Juvenile Justice Board has to take into account section 18
of the said Act. If the child has committed (a) serious offence (b)
petty offence or (c) child below 16 years if has committed
heinous offence, then Juvenile Justice Board is required to pass
an order after taking into account the circumstances as
mentioned in section 18 (a) to (g) and 18 (2) of the said Act.
(d) Juvenile Justice Board to consider section 15 of the said
Act only if the offence is of heinous nature and it is committed
by a child, who is between 16 to 18 years, then Juvenile Justice
Board shall go for preliminary assessment.
(e) Under section 15 of the said Act, Juvenile Justice Board
may take the assistance of expert physiologists or psychosocial
workers.
(f) Thereafter, Juvenile Justice Board shall pass an order
under section 18 (3) of the said Act if child as an adult by
transferring the trial of the case to Children's Court.

(g) The Children's Court to try the child as per section 19 of
the said Act.
18. In the present case, all the petitioners though are between the
age group of 16 to 18 years, they have not committed heinous offences
and, therefore, their case is not covered under section 15 of the said Act
and no order can be passed under section 18 (3) of the said Act of
transferring the case to Children's Court. Hence, the order dated 19th
January, 2018 passed by Juvenile Justice Board of Sangli District and
also the order dated 13th July, 2018 passed by Juvenile Justice Board,
Sangli are quashed and set aside and the inquiry is to be conducted by
Juvenile Justice Board, Sangli under section 18 (3) of the said Act.
19. Writ Petition is allowed. Rule is made absolute in terms of prayer
clauses (a) and (b).
(MRIDULA BHATKAR, J.)

Print Page

No comments:

Post a comment