Why SC Held That A Juvenile Aged Between 16-18 Years Cannot Be Tried As An Adult For Committing Offence U/s 304 IPC?

The boy, who should now not be named, was aged 18 years minus four days, when he ran down a young man with his speeding Mercedes Benz. The 'accident' which killed the youth occurred in 2016, and reportedly the boy had been fined thrice before this incident for traffic violations while he drove his father's car.

The Juvenile Justice (Care and Protection of Children) Act, 2015 categorizes offences into three categories viz. Petty, Serious and Heinous. Petty offences are those for which the maximum punishment provided under any law including the IPC, is imprisonment up to 3 years. 'Serious offences' means, offences for which punishment under any law is imprisonment between 3-­7 years. 'Heinous offences' have been defined to mean offences for which the minimum punishment under any law is imprisonment for 7 years or more.

So the boy was accused of an offence under Section 304 IPC i.e. Culpable homicide not amounting to murder, the punishment for which may extend to ten years, but there is no minimum punishment prescribed. So this kind of offence was not categorised into petty, serious or heinous under the Juvenile Justice Act.

The sister of the deceased youth approached the Delhi High Court contending that juvenile 'X' has committed a heinous offence, and, therefore should be tried as an adult. The High Court held that since no minimum sentence is prescribed for the offence in question, the said offence did not fall within the ambit of Section 2(33) of the Juvenile Justice Act, 2015.

Now, the Supreme Court has virtually upheld the High Court view, but adding that such kind of offences are to be treated as 'Serious offences' for the purpose of Juvenile Justice Act. Noticing the lacuna in the legislation, the bench invoked its inherent power under Article 142 of the Constitution, and held that category of offences viz., offence where the maximum sentence is more than 7 years imprisonment, but no minimum sentence or minimum sentence of less than 7 years is provided, shall be treated as 'serious offences' within the meaning of the Act.

The Court also refused the suggestion made by Senior Advocate Siddharth Luthra that the doctrine of surplusage should be applied and from the definition of 'heinous offences', the word 'minimum' is to be removed which would then make all offences other than petty and serious would fall under the heading of 'heinous offences'. The bench observed that the scheme of the Juvenile Justice (Care and Protection of Children) Act, 2015 is that children should be protected. Treating children as adults is an exception to the rule, it said.

If a child (irrespective of age) is found to have committed a petty offence, or a serious offence, the Juvenile Justice Board can pass any of the following orders.

(a) allow the child to go home after advice or admonition by following appropriate inquiry and counselling to such child and to his parents or the guardian;

(b) direct the child to participate in group counselling and similar activities;

(c) order the child to perform community service under the supervision of an organisation or institution, or a specified person, persons or group of persons identified by the Board;

(d) order the child or parents or the guardian of the child to pay fine: Provided that, in case the child is working, it may be ensured that the provisions of any labour law for the time being in force are not violated;

(e) direct the child to be released on probation of good conduct and placed under the care of any parent, guardian or fit person, on such parent, guardian or fit person executing a bond, with or without surety, as the Board may require, for the good behaviour and child's well-being for any period not exceeding three years;

(f) direct the child to be released on probation of good conduct and placed under the care and supervision of any fit facility for ensuring the good behaviour and child's well-being for any period not exceeding three years;

(g) direct the child to be sent to a special home, for such period, not exceeding three years, as it thinks fit, for providing reformative services including education, skill development, counselling, behaviour modification therapy, and psychiatric support during the period of stay in the special home: Provided that if the conduct and behaviour of the child has been such that, it would not be in the child's interest, or in the interest of other children housed in a special home, the Board may send such child to the place of safety.

Interestingly, the consequences of committing serious offence and a petty offence are quite the same. The difference is only in the procedure. The Act provides that cases of petty offences, are to be disposed of by the Board through summary proceedings, while  inquiry of serious offences should follow the procedure, for trial in summons cases. It is also clear that the definition of 'serious offences' in the Act does not even remotely suggest that an offence which prescribes punishment of more than seven years can be included in it. 

But if a person aged more than sixteen but less than eighteen, like the boy in this case, who is alleged to have committed a heinous offence can be, subject to preliminary assessment, can be tried as as an adult as per the provisions of the Code of Criminal Procedure by the Children's Court. But, even if a child commits a heinous crime, he is not automatically to be tried as an adult.

The consequence of the Supreme Court judgment in this case is that, the boy who ran down a youth and killed him would only face the consequences listed as (a) to (g) above. If the offence was committed just four days later, he might have got the punishment of imprisonment upto ten years.

If a juvenile aged between 16 and 18 years commits an offence, the punishment of which is prescribed as less than seven years, he cannot be tried as an adult. But if he commits an offence, the minimum punishment is imprisonment for 7 years or more, he may be tried as an adult, of course subject to preliminary inquiry. The Juvenile Justice Act does not categorize the 'fourth category' of offences, like Section 304 IPC. Had it been aware of such a 'fourth category', would it have included them in the category of 'serious' offences, for which there is no 'trial as an adult' option? This, perhaps, was the real question, the Supreme Court should have answered in this case.

Anyhow, till the legislature fills the lacuna, the effect of this judgment is that any person aged below 18 years who is alleged to have  committed an offence under Section 304 IPC viz. Culpable Homicide not amounting to murder, cannot be tried as an adult.