Juvenile Justice Board's Decision To Try Child As Adult Must Be Transparent And Fair: Bombay High Court

Owing to several procedural lapses by the Juvenile Justice Board (JJB), Yavatmal, the Bombay High Court ordered re-adjudication of a plea to try two juveniles as adults in the case of a gang-rape of a minor girl.

Justice GA Sanap at the Nagpur bench noted that the JJB’s roznama didn’t specify if the juveniles or their advocates were even given a copy of the application, their psychiatric evaluation report or if they participated in the assessment process under Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2015.

“It is to be noted that the inquiry to arrive at a conclusion to try the child as an adult, has to be conducted in a transparent and fair manner…The inquiry conducted under Section 15 of the J.J. Act must display the adherence to the basic procedural standards of fairness. The child in this process is required to be given fair and unbiased hearing.”

The bench further observed that final order passed by the JJB to try the juveniles as an adult with such a half-hearted inquiry, "has caused prejudice not only to the JCLs, but to the informant and the victim.”

The court recorded the seriousness of the offence, wherein one of the two juveniles acted as a kin pin by developing intimacy with the girl and further allowed his friends to sexually exploit the victim.

It not just quashed the JJB’s order to try them as adults which was confirmed by the Sessions Court but directed restoration of the victim’s father’s application to try the two juveniles as adults. The court said all the procedures under section 14, 15 and 18(3) of the JJ Act be strictly followed and the matter to be disposed off within a month.

Justice Sanap rejected the juvenile’s submission regarding the Act’s mandate to complete the preliminary assessment within four months, therefore objecting to consideration of the victim’s application.

“The JJ Act does not bar the right of the victim or the informant to invoke the provisions in case of failure of the JJB to discharge its duty under the law. Therefore, in my view, in this case on the ground of procedural lapse on the part of the JJB, the right of the informant to apply before the J.J.B. even after prescribed timeline cannot be taken away.”

The Offence

In 2018, nine people were booked for offences punishable under Sections 376(3), 376DA, 376(2)(j)(n), 354D, 504, 506 read with Section 34 of the Indian Penal Code, under Sections 6, 8, 10, 12, 14, 15 of the Protection of Children from Sexual Offences Act, 2012 and under Sections 67A, 67B and 66E of the Information Technology Act, 2000 pursuant to the complaint by victim’s father.

Of the nine accused, four were found to be below 18 years and were sought to be tried by the JJB. The victim’s father filed an application and sought for two of those before the JBB to be tried as adults.

The JJB partly allowed the application under Section 15 read with Section 18 (3) of the JJ Act. The provisions deal with an assessment of the juvenile’s mental and physical capacity and ability to understand the consequences of alleged offence.

A session court confirmed the order pursuant to which the juveniles approached the high court.

Apart from the several lapses, Justice Sanap observed non-compliance of Section 18(3) which provides that the order whether a juvenile should or should not be tried as an adult must be passed by the Principal Magistrate and at least one more member of Juvenile Justice Board.

“In this case, neither in the roznama, nor in the final order, there is mention of presence of the remaining two members. It is to be noted that this mandatory procedural compliance is required to be strictly met. In such serious matter, casual or mechanical approach cannot adopted. On this count also the order passed by the J.J.B. cannot be sustained.”

Case No. - CRIMINAL REVISION APPLICATION NO. 32 OF 20 20

Case Title – XXX vs State of Maharashtra

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