Juvenile board must try 16-18 year olds if not involved in heinous crimes: HC

Source: Times of India dated 18.12.18
Shibu.thomas@timesgroup.com
Mumbai:

A child between 16 and 18 years who has not committed a heinous offence cannot be tried as an adult by a children’s court, the Bombay high court has clarified.

Justice Mridula Bhatkar struck down an order of the Juvenile Justice Board allowing the case of three 17-yearolds charged with attempt to murder to be transferred to the children’s court. The court pointed out that the offence of attempt to murder was not a heinous offence as the punishment prescribes a maximum jail term of 10 years and no minimum imprisonment.

Under amendments brought to the Juvenile Justice (Care and Protection of Children) Act, a minor between 16 and 18 can be tried as an adult if a heinous crime has been committed. The special law defines heinous offence as any crime with a minimum punishment of seven years in jail.

If a minor is in conflict with the law or is below 16 and has committed a heinous offence, such cases are to be decided by the Juvenile Justice Board (JJB). The board, if it holds the child guilty, can place him in a special home for a maximum period of three years.

However if a minor between 16 and 18 has committed a heinous crime, the board should send such children for a preliminary assessment by a panel of psychologists. If the panel concludes that the child has the capacity to commit the crime and understand the consequences of the alleged offence, the board can transfer the case to the children’s court. On being held guilty, the children’s court can sentence the accused to a “place of safety” till he turns 21 and he will serve the remainder of his term in an adult prison.

In the present case, the board sent the 17-year-olds for preliminary assessment and ordered for the case to be transferred to the children’s court. The lawyers for the accused argued that if they are tried by the children’s court, grave prejudice would be caused to them in view of the stricter punishments.

The HC agreed that attempt to murder does not qualify as a heinous offence. “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,” said the high court.