Juvenile cannot be transferred to Children’s Court if crime committed not heinous offence under JJ Act

Bombay High Court: A Single Judge Bench comprising of Mridula Bhatkar, J. allowed a petition challenging the Juvenile Justice Board, Sangli’s order passed on 19-1-2018 and 13-7-2018, committing a child who has not committed the heinous offence to Children’s Court.

In the present case, petitioners concerned were not adults when they had attempted to commit an offence of murder punishable under Section 307 IPC. They all were aged 17 years at the time of the commission of the offence and were admittedly falling under the definition of Section 2 (12) of the Juvenile Justice (Care and Protection of Children) Act, 2000.

The petitioners were referred to a psychologist for assessment and on placing the report of the same before the JJ Board, the assessment made by the board was that the mental, as well as physical capacity of CCL (Child in Conflict with Law), was sufficient to commit crime. Therefore, JJ Board transferred the matter to the Children’s Court in accordance with Section 18(3) of the Act. This order was challenged by the petitioners before the High Court.

Learned Counsel for the petitioners Mr Satyavrat Joshi stated that petitioners being “child” if not have committed a heinous crime, then they are to be tried by JJ Board and not Children’s Court.

The Court considered Section 2(33) which defines heinous crime and noted that to be one which is punishable with a minimum punishment of seven years or more. However, under Section 307 IPC, no minimum sentence is prescribed. Therefore, Court was of the opinion that since the offence alleged to have been committed by the petitioners was a serious offence and not heinous offence, Section 15 under which assessment into heinous offences was to be made by the Board had no application. Furthermore, the Court embarked to cull put the steps to be followed by the Board in terms of inquiry in such cases. The Board, stated the Court, should follow 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 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  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 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 a preliminary assessment.

(e) Under Section 15, Juvenile Justice Board may take the assistance of expert physiologists or psycho-social workers.

(f) Thereafter, Juvenile Justice Board shall pass an order under Section 18 (3) if child as an adult by transferring the trial of the case to the Children’s Court.

(g) The Children’s Court to try the child as per Section 19 of the Act.

In the present case, on basis of the discussion as mentioned above, the Court held that the Board could not have transferred the case to Children’s Court. Hence, the impugned order was quashed. The Board was directed to proceed with the inquiry. [Saurabh Jalinder Nangre v. State of Maharashtra, 2018 SCC OnLine Bom 6295, dated 10-12-2018]

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