Juvenile Not To Be Tried As An Adult Merely Because The Offence Is Heinous: Bombay HC [Read Judgment]

The Bombay High Court has set aside the order of Juvenile Justice Board that had directed to try a 'juvenile' accused of murder of a 3 year old girl 'as an adult'.

He shall be tried as a juvenile, said Justice Dama Seshadri Naidu while observing that the Board had mechanically relied on the Social Investigation Report and Mental Health Report, without analysing the older adult's case on its own.

Two boys, one aged 17.5 and the other aged 16.5 were allegedly involved in a murder of a 3 year old girl. The Juvenile Justice Board decided to try the elder one, under Section 15 of the Juvenile Justice Act, 2015, as if he were an adult and the younger one as a juvenile. The appeal filed by both the state and the elder boy against these orders were dismissed by the Sessions Court.

Statute does not intend that all those children should be subject to adult punishment

Perusing the Social Investigation Report and Mental Health Report, in the case of elder boy, the court, while considering the appeal, observed that the JJ Board has undertaken no independent assessment; it has, in fact, heavily relied on the Social Investigation Report and MH Report. It also said that neither report brings out into open any exceptional circumstances that compel the older juvenile to face the trial as an adult. Referring to Section 15 of Juvenile Justice Act, the court observed:

"Section 15 of the Act to determine what circumstances compel a juvenile to face the trial as if he were an adult. (1) It must be a heinous offence; here it is. (2) The child must have completed sixteen years; here he has. (3) The Board must have conducted a preliminary assessment; here it has. (4) That preliminary assessment concerns four aspects: (a) the child's mental and (b) physical capacity to commit such offence; (c) his ability to understand the consequences of the offence; (d) and the circumstances in which he allegedly committed the offence."

"I reckon of the four aspects—physical capacity, mental ability, understanding, and the circumstances—none is dispensable. They all must be present, for they are not in the alternative. Let us remind ourselves, just because the statute permits a child of 16 years and beyond can stand trial in a heinous offence as an adult, it does not mean that the statute intends that all those children should be subject to adult punishment. It is not a default choice; a conscious, calibrated one. And for that, all the statutory criteria must be fulfilled."

Retributive approach vis-à-vis juveniles needs to be shunned unless there are exceptional circumstances

The court further observed:

Merely on the premise that the offence is heinous and that it lends to the societal volatility of indignation, we are bracing for juvenile recidivism. Retributive approach vis-à-vis juveniles needs to be shunned unless there are exceptional circumstances, involving gross moral turpitude and irredeemable proclivity for the crime. Condemned, any juvenile is going to be a mere numeral in prison for a lifetime; reformed, he may redeem himself and may become a value addition to the Society. Let no child be condemned unless his fate is foreordained by his own destructive conduct. For this, a single incident not revealing wickedness, human depravity, mental perversity, or moral degeneration may not be enough. Just deserts are more than mere retribution…

The Society, or restrictively the aggrieved person, views any problem ex post; it wants a wrong to be righted or remedied to the extent possible. The courts, especially the Courts of Record, view the same problem ex ante. "It involves looking forward and asking what effects the decision about this case will have in the future". To be more accurate, the courts balance both perspectives. I reckon Section 15 of the Act requires us to balance both the competing perspectives: ex post and ex ante.

The court finally held that both the juveniles, elder and younger, shall be treated as juveniles.

The theory of reduced culpability for juveniles relative to adults has taken a statutory dent.

Justice Naidu, in his judgment, however, observes that, in this age of internet and social media, , the theory of reduced culpability for juveniles relative to adults has taken a statutory dent. He observes:

A universally accepted ideal is that children are dependent and deficient in the mental and physical capacities, and are in need of guidance. Perhaps, initially, a multi-visual medium like TV; later, a globe devouring internet (appropriately, ominously worded as "world wide web"), and finally—and fatally—the post-truth social media have let the children, especially the adolescents, leapfrog into the adult world. Mostly it is a crash-landing, with disastrous consequences. So the childhood innocence is the casualty. These devices may have made a child bypass his or her childhood, sadly. Then, naturally, the theory of reduced culpability for juveniles relative to adults has taken a statutory dent. The good-old-days icon of a truant child seems to get replaced by the modern-day mascot of a violent predator

Click here to Download Judgment

Read Judgment