Case Analysis of Saurabh Jalinder Nangre and Ors v. The State of Maharashtra (Under Juvenile Justice Act)

ISSUES:

1. WHETHER a juvenile who has not committed a heinous crime can have their case transferred to Children’s court.

I. Prosecution arguments: (Satyavrat Joshi)

1. In the present legal scenario, 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. The results of this assessment report, governed by section 15 of the said Act, was placed before Juvenile Justice Board.

2. The Board has considered the facts of the case and also interacted with Child in Conflict with Law (CCL)² 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.

3. Given that the assessment test for the mental and physical capacity of the persons to commit a crime and understand the consequences gave that a child in conflict with law under the JJ board’s advisory actions, in an attempt the eliminate prejudice of any kind is to be sent to the Children’s Court for trial.

II. Defence Arguments (Yogesh Y. Dabk , APP):

1. The present petitioners were all the age of 17, which is below 18 the stipulated age which requires an adult to be consciously aware mentally as well as capable physically to commit a criminal activity. These petitioners were being prosecuted for attempt to commit murder which is punishable under section 307 of the Indian Penal Code, 1860.

2. However, given the scope of section 2(12) of the JJ Act, 2000, whether the offence of the accused is bailable or non-bailable (in this case, attempt to murder is non-bailable), a juvenile should be released on bail either with or without surety on the basis on them being underage, or if the probation officer seems that the release of such individual/s is going to disrupt the process of justice and affect the well-being of the society, shall be put under the supervision of an institution fit for improving the mental state of the accused.

3. Considering that 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 up to life imprisonment. Therefore, the accused, being juvenile, cannot be transferred to Children’s court.

III. Rules

Indian Penal Code 1860, (IPC) - Section 307, Juvenile Justice (care And Protection of Children) Act, 2000 Section 15, 18, 18(1), 18(2), 18(3), 19.

IV. Decision of the court

The court ruled in favour of the accused party, the defendant, by proving them not having committed a heinous offence therefore, due to the precedents existing, shall not be covered by the ambit of S.15 and no order on this instance can be passed under S.18(3), therefore the case will not be applicable to be transferred to the Children’s Court for trial. The writ petition was allowed on the prayers of the defendant which stated that:

1) since lawfully the accused are under the age of 18 therefore by virtue S.2 they must be considered a “child” and not be tried in the same manner an adult would be for similar crimes and;

2) the nature of offence doesn’t warrant for a minimum punishment of 7 years under IPC therefore, does not constitutes a heinous crime, therefore it cannot be tried.

V. Analysis

According to research by Hirschi and Gottfredson (1983)³, the occurrence of crime has a very strong relationship with deviance of age; meaning that in general criminal behaviours that ought to peak in adolescence due to variety of psychosocial factors, the indulgence in delinquency outrightly diminishes with age. In framing the legislations of the JJ Act as well, jurors have taken into account this conventional fact in deciding how the punishment structure in children who are in conflict with the law shall be as the same determines their course of life. Cultural deprivation and economic factors have been highlighted to be the main reason for a juvenile’s indulgence in criminal activities. Therefore, it becomes the task of the criminal system in identifying the disruptive behaviours and therefore, correcting them through rehabilitation and care by fit authorities instead of throwing them into a life of prison, which does little in solving the crux of the issue.

As has been specified in various legal frameworks, the importance of humane treatment to even accused individuals in order to ensure a free and fair trial in a non-discriminatory way is imperative. The Indian Juvenile Justice System currently provides for juveniles between the age of 16 and 18 who have committed heinous crimes to be tried as adults. The reason for this is because in most of the crimes against women in India, for instance even in the infamous Nirbhaya case⁴, there is an underaged person present. Such crimes cannot be neglected by the criminal justice system, as specified even under Section 18(3) that if after 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 and⁵, if the juvenile is found to have committed a heinous crime and is above the age of 16 years then the Juvenile Board may transfer the case toa Children’s Court where they may send him to a place of safety and after the attainment of 21 years and thereafter he shall be transferred to a jail.⁶ This principle enables the protection of not only fundamental rights of a person to a life of dignity under the Indian Constitution but also for the maintainability of the criminal system.

Section 2(k) "Juvenile" or "child" means a person who has not completed eighteenth year of age.⁷which says that every person domiciled in India shall be deemed to have attained his majority when he shall have completed his age of eighteen years and not before. ⁸With this regard, when the age of majority has been provided by law to be eighteen years, any person less than that age, even by a day would be a minor in law. To determine whether the person is Juvenile or child, an inquiry is to be held and on the basis of evidence adduced or deduced, the fact can be established.⁹

The main issue in the section is revolving around the age of the offender. If he is falling under the definition of section 2(h) of the Act, 2000 or section 2(h) of the Juvenile Justice Act, 1986, as the case may be, then such offender is a Juvenile and he cannot be charged with or tried along with any other offender who is not a Juvenile. An important argument of contention brought in front of the Hon’ble court is with respect to the preliminary assessment of the word “heinous offenses” that is being defined under section 2(33) of the Juvenile Justice Act, which reads those 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". Considering 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.

Allahabad High Court¹⁰ took up this case where the proceedings were pending against Juvenile and non-Juvenile together. No charges were framed. The Juvenile Justice Act, 1986 had come into force and it was held that court must frame separate charges against Juvenile and non-Juvenile and try them separately.

The courts not only in the following case but also in Hon’ble High Courts of Bombay in judgement dated 18^th September 2018¹¹ and Patna in 21^st May 2018¹² have taken a view that the category of 'heinous offences' cannot include offences falling within the 4th category. The courts have used this precedent under cases that followed to decide the matters in favour of the accused stating that its treating children as adults is an exception to the rule and a well settled principle which is ought to be followed in statutory grounds.¹³

The defence counsel of the petitioners in this case 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. TO stick to the original agenda of granting protection to children, a Parliamentary committee gave that there is need to subject juveniles to different or adult judicial system as it will go against Articles 14 and 15(3) of the Constitution.¹⁴ Hence, it could be observed that although differing views could be taken by the JJ Board in adjudicating matters of CCL, the children welfare community and upon enquiry by a practicing professional psychologist, their cases is therefore to be disposed under the provisions of this Act.

Therefore, the objective of the Act being not the subjection of these children to any 'punishment' but in order to supply them with elements of care, protection, development, treatment and social re-integration that might be causing them to indulge in crimes is necessary to be followed and the intent of the legislative is also clear.

VI. Comparative analysis

How is attempt to murder by juvenile dealt with under the laws of another countries? In India, the JJ Board must decide that the case is not protected by S.18 of the JJ Act and then, can the case of heinous crimes can be transferred to Children’s Court for Trial. In the US, the factors involved in influencing the judge’s decision in the crimes of a child are a) the seriousness of the offence b) age c) previous criminal records and d) the amenability of a Juvenile to treatment i.e., how would the juvenile respond to the rehabilitative facilities provided by the authorities. In the US, some states also have an upper age limit of 14 under the correctional process of waiver or transfer, that allows a prosecutor to try the criminal case in courts, upon the Judges approval. Unlike in India, where the precedence for trying a juvenile ONLY for heinous crimes with a minimum 7 years of imprisonment classification is absolute, children in US can also be tried as adults in commitment of minor crimes including underage possession of alcohol or drugs, gambling, prostitution, etc involving jail time. In case of murder, or similar violent crimes such as assault or battery, measures include from counselling to the confinement in a juvenile facility, where the Judge decides on the severity of crime and the punishment in relation to it. In short, the Federal Criminal System in the US via petitions can transfer cases of a juvenile, even at the age of 13, to be tried as an adult depending on the severity of violation of law. "The older a juvenile delinquent is both at the time of the alleged offense and at the time of transfer hearing, the more the juvenile defendant's age weighs in favour of transfer.¹⁵

In the landmark decision in Roper v. Simmons, like the decisions taken in Indian courts on juvenile’s constitutional rights under A. 14, the US court ruled in a 9-bench judgement in the favour of the view that imposition of a death pinnately for a crime committed by a child under the age of 18 is unconstitutional and violates the Eighth and Fourteenth Amendments.¹⁶ It concluded that children are less culpable than adults from both an intellectual and a moral viewpoint. The more stringent laws that are being applied in the US for juvenile crimes are not being followed by India. In the US, the slogan “adult crime adult time “is being popularised, after the deinstitutionalisation of juvenile crimes in 1980s. In 38 states of US, upper age of juveniles being 17 years in 38 states in the US is also a proof for their regressive system of controlling juvenile crimes.

VII. Conclusion

The Juvenile Justice Act, the constitutional provisions separately available to children, the National Policy for Children implemented all for the sake of children upliftment is all too liberal and ignores the criminal index of juveniles and their ability to commit crimes. Being the age of 17 protects you from imprisonment as the same doesn’t meet the criteria for admission under the category of heinous crimes. National Crime Records Bureau reports suggests that various crimes committed by juveniles (age group 16-18 years) have increased by 59.7 from 2003-2013. One of the accused in this case was only a few months from turning 18, so if he were to commit the crime of murder successfully after adulthood, would the criminal system take accountability of the lost life with its comprehensive legislations currently endorsing and favouring criminal adolescents? The US approach to treating juveniles not according to their age factor but the atrocities of a crime need to also be included in the policy making of India, for the betterment of society.

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Footnotes

1. Author is a student at Symbiosis Law School, Pune, India.

2. “Child in Conflict with Law” has been defined under Section 2 (l3) of the Juvenile Justice (Care & Protection of Children) Act, 2015 as a child who is alleged or found to have committed an offence and has not completed eighteen years of age on the date of commission of such offence ↩

3. Travis Hirschi; Michael Gottfredson: The American Journal of Sociology, Vol. 89, No. 3. (Nov., 1983), pp. 552-584 ↩

4. Mukesh and Anrs. Vs NCT Delhi (2017) 6 SCC 1 ↩

5. S. 15(1) JJ Act, 2015 ↩

6. S. 19(3) JJ Act, 2015. ↩

7. Section 3 of the Indian Majority Act, 1875 ↩

8. S. 2(k) JJ ACT, 2015 ↩

9. Jyoti Prakash Rai v. State of Bihar, AIR 2008 SC 1696 ↩

10. All LJ 390 ↩

11. Rajiv Kumar vs. State of Bihar Criminal (SJ)No.1716 of 2018 ↩

12. Bijender vs. State of Haryana and another CRR 1615 of 2018 ↩

13. Shilpa Mittal v. State (NCT of Delhi), (2020) 2 SCC 787 ↩

14. Para 32 of the 264 Report on the Juvenile Justice (Care and Protection of Children) Bill 2014 of the Department-Related Parliamentary Standing Committee on Human Resource Development presented to Rajya Sabha on Feb. 25, 2015 and laid on the table in Lok Sabha on Feb. 25, 2015. ↩

15. United States v. Juvenile Male, 316 F. Supp. 3d 553, 561 (E.D.N.Y. 2018) ↩

16. Roper v. Simmons, 543 U.S. 551, 554 (2005) ↩