The 4th Category of Offence under Juvenile Justice (Care and Protection) Act, 2015
The Juvenile Justice (Care and Protection) Act, 2015, (hereinafter referred to as ‘JJA’) broadly categorized the offense in three, different criteria i.e. heinous offense, serious offense, and petty offenses. As per Section 2(33) of the Act, offenses that are punishable with a minimum imprisonment of seven years or more falls under the ambit of heinous offenses. Offenses for which maximum punishment is imprisonment up to three years are petty offenses as per Section 2(45) of the Act and offenses which is punishable with imprisonment between three to seven years falls under the category of serious offenses as per Section 2(54) of the Act.
However, if the offense for which minimum punishment is less than seven years or where no minimum punishment is mentioned such as, an offense under Section 302, 304, 376D of the Indian Penal Code, 1860, (hereinafter referred as ‘IPC’), etc., then in which of the three categories of offense it will fall? Or there should have been the 4th category of offense which the legislature has skipped to make it a part of the Act?
In a recent judgment, Shilpa Mittal vs. State of NCT of Delhi , the Apex Court while deciding the case under Section 304 of the IPC, for which no minimum sentence is prescribed and is punishable with a maximum imprisonment for life or up to 10 years and fine, observed there should have been the 4th category, however, in the absence of such category, any offense which does not prescribe any minimum sentence or where the minimum is less than 7 years, are not covered under Section 2(33) of the Act and shall be treated as ‘serious offenses’ within the meaning of the Act and will be dealt accordingly.
If a child below the age of 18 years and above the age of 16, commits a heinous offense, then after the preliminary assessment concerning mental, and physical capacity of the Child as mentioned in Section 15 of the Act is to be made and pass an order accordingly. Thereafter, if the Board thinks that the child is to be treated as an adult, the case will be transferred to the Children’s Court. Section 19 of the Act, empowers the Children’s Court to reassess the preliminary assessment done by the board under Section 15 and determine whether there is an actual need to conduct the trial as an adult or not. Children’s Court can either approve or reject the assessment made by the Boards.
Now, let’s understand with an example. “If the child above 16 and below 18 years, has been tried and convicted as an adult by the Children’s Court under Section 376 DA or 376 DB IPC, what sentence can be imposed by the Children’s Court?” There is no minimum punishment for the offense committed u/s 376 DA and 376 DB of IPC rather only the maximum punishment of life imprisonment is mentioned. However, Section 21 of the Juvenile Justice Act bars death sentence and life imprisonment to a child in conflict with the law. So, in this case, the offense will fall in which of the three categories and what punishment will be awarded to the child in conflict with the law?
The Act is silent on this point. If this matter, goes to the children’s court, then, as per the aforementioned judgment the Court should treat such a heinous crime similar to that of a serious offense. But what will be punishment? Whether punishing the child with imprisonment of seven years justified? Or whether the punishment should be more to deter people from committing such kind of offense?
In the year 2012, after the horrendous incident of rape which took place in Delhi, in which one juvenile was involved, who was one of the main culprits, few sections of society were in rage to punish that juvenile not as a juvenile but as an adult. That led to the replacement of the Juvenile Justice (Care and Protection of Children) Act, 2000 with the new Act of 2015. But by not considering the 4th category of offense the lawmakers have completely left a gap, due to which the purpose of the Act is not being achieved to its full extent. The law should have been clear regarding how and in what manner juvenile who commit such a horrendous act is to be treated.
As per the report of the National Crime Records Bureau (NCRB) in the year 2017, over 40,000 juveniles were involved in various offences, out of that 72% belonged to the age group from 16 to 18 years. Similarly, in the year 2014, 75% of Juveniles were above 16 years of age. As per the reports, juveniles aged between 16 to 18 years are actively involved in crimes, but only due to age factor and grounds of mental capacity, minor punishments are given to them for committing such heinous crime. A murder is a murder, rape is a rape, and nobody should take such undue advantage of the law and easily walk away from the crime that they committed.
The law should not only focus on reforming the criminal but it should also deal with the rights of the victim. There should not be such a strict law which will vitiate the whole purpose of the JJA, i.e. to reform the child and give them a chance to change, but also the law should not be that lenient that it has no deterring effect on the offender and society and where rights of the victim are completely neglected.
If the age of juvenility will be too low, there will be no difference between children and adult and criminal law which applies to adults will also be applied to a child. However, if the age of juvenility will be too high, it will encourage criminal behavior in children as the level of punishment will be low, which will not create any deterrent effect on them and hence there will be no fear of punishment, as they know that under the garb of reformation they will easily get away with the crime by facing very low or no punishment at all.
 Criminal Appeal No. 34 Of 2020
ABOUT THE AUTHOR
This blog has been authored by Advocate Prachi Agarwal, who is a Practicing Advocate at District Courts & High Court, Jharkhand.
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