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The Bombay High Court overruling the decision of the Juvenile Justice Board has held that just by the reason of the statute which permits a child of 16 years and beyond, to stand trial for heinous offences as an adult, will not mean that the statute intends that all those children should be subject to adult punishment.
Two boys, aged 17.5 and 16.5 years respectively, were involved in the murder of a 3 year old girl. Justice Dama Seshadri Naidu observed that the Board had, mechanically relying on the Social Investigation Report and Mental Health Report, directed to try the older accused boy 'as an adult' under Section 15 of the Juvenile Justice Act, 2015, whereas the younger boy was to be tried as a juvenile. Appeals were filed by both the state and the elder boy against these orders and those were dismissed by the Sessions Court.
While perusing the Social Investigation Report and Mental Health Report, in the case of the elder boy, the court observed that the JJ Board undertook no independent assessment and neither of the report bought out any exceptional circumstances which would compel the older juvenile to face the trial as an adult.
The Court observed Section 15 of the Act, which determines the circumstances under which a juvenile could be tried as an adult. The section requires that (1) The offence must be heinous; (2) Child must have completed sixteen years; (3) A preliminary assessment must be conducted by the Board (4) which 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. The Court said that the presence of these 4 aspects is indispensable as they are not in the alternative. “It is not a default choice; a conscious, calibrated one. And for that, all the statutory criteria must be fulfilled."
The Court further observed “Retributive approach vis-à-vis juveniles need to be shunned unless there are exceptional circumstances”. If the juveniles are condemned, they would merely be a numeral in prison for a lifetime, but if they are reformed they may redeem themselves and become a value addition to the society. The Court said, “Let no child be condemned unless his fate is foreordained by his own destructive conduct.”
Further the Court observing the perspectives of viewing problems ex post and ex ante said that, the society views any problem ex post, i.e. it wants a wrong to be righted or remedied to the extent possible, whereas the Courts and especially the Courts of Record, view problems ex ante, i.e. by looking forward at what would be the effects of the decision in a case. Section 15 of the Act requires that both the competing perspectives should be balanced.
Finally, the court held that both the juveniles, elder and younger, shall be treated as juveniles.
However, Justice Naidu, in his judgment, observed that, the innocence of a child is the casualty in this age of the internet and social media. The adolescents have bypassed their childhood as a result of these mediums. He states, “The theory of reduced culpability for juveniles relative to adults has taken a statutory dent.”
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