Table of Content:

• Introduction
• Constitutional provision related to juvenile
• Classification of offenses under the JJ Act
• Critical Analysis of Shilpa Mittal vs State of NCT of Delhi [(2020) 2 SCC 787]
• Brief of the case
• Issues framed
• The contention of parties
• The decision of the court
• Conclusion

Introduction

The Juvenile Justice (Care and Protection of Children) Act, 2015 is enacted to provide security and protection to the juveniles who are in prison or accused of committing a crime. The intention of legislature behind enacting such a law is to prevent children from committing the crime or become habitual offenders as the children are the future of the nation and it is necessary to guide them to travel on the right path.

According to this act, a person is considered as a child until and unless he attains the age of 18 years. The definition of a child is given under section 2 (12) of the Juvenile Justice (Care and Protection of Children) Act, 2015. Further section 2 (35) of the Act defines the term ‘Juvenile’.

There are various reasons that children are committing the crime. Generally, it has been seen that the children involved in criminal offenses belong to the poor or weaker section of the society or the ones who are orphans and have no one in their lives who can teach them what is right or what is wrong. Here, education will also play a major role as due to the lack of education and awareness the children involved in such offenses do not know the nature of the very act they are engaged in.

Constitutional Provisions related to Juvenile

As it is a well-established fact that the constitution of India, 1950 is considered to be the supreme law of the nation, and whatever the statute or law enacted by the legislature is must be in conformity with the Constitution. The constitution of India provides the following rights and duties which is taken into consideration while enacting the Juvenile Justice Act and the state need to take care of these rights and duties of the children:

• Article 14:- Right to equality
• Article 15 (3):- This article conferred a power in the state to enact a law for the betterment of women and children.\
• Article 21 A: – every child between the age of 6 to 14 years has a right to get free and compulsory education.
• Article 24:- this article grants a right that no child under the age of 14 years can be employed in any kind of hazardous activity or employment.
• Article 39:- every person in the territory of India has a right to be protected from human trafficking and forced labor.
• Article 39 (f): Every Child in India has a right to get opportunities and enough facilities so that they can be developed in a healthy manner as well as they are entitled to get protection against exploitation.
• Article 47:- every person in the territory of India has a right to live in a proper standard of living and have good nutrition.

Classification of Offences under the JJ Act

Every person has a different mental capacity and in the case of children it is very necessary to keep in mind what is maturity level that child has gained and what is nature of the offense he or she has committed or is involved in. as there cannot be same punishment prescribed for all the offenses and the child should be punished according to their guilt.

Therefore the offenses are classified under three categories:

1. Petty Offences [Section 2 (45)]:- these are the offenses for which punishment prescribes under the Indian penal Code, 1860 or under any other law prescribes for up to 3 years of imprisonment.
2. Serious Offences [Section 2 (54)]: these are those kinds of offenses for which punishment prescribes is between 3 years of imprisonment and can be extended up to 7 years. 
3. Heinous Offences [Section 2 (33)]: these are the offenses for which punishment under the Indian penal Code, 1860 or in any other statute prescribes for severe years or more. 

Critical Analysis of Shilpa Mittal vs State of NCT of Delhi [(2020) 2 SCC 787]

Brief of the Case

In the instant case, a juvenile (say A) who is above 16 years but below 18 years of age is found guilty of the crime which amounts to be culpable homicide which is not amounted to be murder and under Section 304 of the Indian Penal Code, 1860 provides punishment which can be extended up to 10 years and also to imprisonment for life in the first part and under the second part, it prescribes the punishment of imprisonment up to 10 years accompanied with fine. But nowhere in the section, is minimum punishment related to such prescribed.

In this case, the accused juvenile was involved in a motor vehicle accident case and the court held that the offense committed by the A is falling under the head heinous offense and therefore will be prosecuted as an adult before the court. Juvenile A appealed in the Juvenile’s court against the order of the trial court and the same was dismissed by the juvenile’s court. After the dismissal mother of the juvenile A approached the High Court of Delhi.

The Delhi High Court held that nowhere in the said provision of Indian penal Code, 1860 prescribes the minimum punishment for the said offense in question and therefore the said offense does not fall in the ambit of Section 2 (33) of the Juvenile Justice (Care and Protection) Act, 2015. Again the decision of the Delhi High Court the sister of the deceased filed an appeal in the Hon’ble Supreme Court.

Issues Framed

1. Whether an offense for which maximum punishment prescribes under the Indian penal code, 1860 or under any other law is more than 7 years of imprisonment but there is no minimum punishment is prescribes can be included under section 2 (33) of the Juvenile Justice (Care and Protection of Children) Act, 2015 under the head ‘Heinous Offense’?
2. How the court would have been interpreted the word “minimum”?
3. What are the criteria for treating a juvenile under a category of an offense?

The Contention of the Parties

Arguments of the Appellant

• The Counsel Siddharth Luthra on behalf of the appellant contended that those crimes for which minimum punishment is not provided but the maximum punishment that has been provided is more than 7 years of imprisonment t shall be treated as the Heinous Offense as the minimum punishment in such offenses would be considered as seven years.
• The appellant further contended that the definition for the term heinous Offense given under section 2 (33) of the act would include the word “include” which means that the definition is not the exhaustive one and via interpretation, the court can add the words in the definition.
• The learned counsel argued that the court would not defeat the intention of the legislature merely on the ground of some unincluded categories of the offenses.

Arguments of the respondent

• Learned counsel Mukul Rohatgi and Hrishikesh Baruah appeared on the behalf of the respondent juvenile and contended that the order passed by the High Court has no lacunas as there is a loophole in the act as the act doesn’t provide any minimum punishment criteria for the heinous category of offense.
• Therefore, the respondent counsel contended that the offense committed by the Juvenile is not falling under the definition of the heinous crime.
• The respondent counsel argued that though the court can fill the laches in the act but this cannot be possible in the instant case.

The decision of the court

The Hon’ble Supreme Court on 9th January 2020 passed the judgment in the instant case where the court held that “an offense where the minimum sentence is less than 7 years, or there is no minimum sentence prescribed but the maximum sentence is more than 7 years cannot be treated to be a heinous offense within the meaning of Section 2(33) of The Juvenile Justice (Care and Protection of Children) Act, 2015 and shall be dealt with in the same manner as children who have committed ‘serious offenses’ till the Parliament takes the call on the matter.” 

The court further observed that with regard to the question regarding on what basis the age of the person determine to know whether he or she falls under the category of Juvenile or not will be considered as what was the age at the time when the offense was committed and here the court gave emphasis on Nirbhaya Rape case where one of the accused offenders was 17 ½ years. Further the court stated that

“This Section provides that if the child offender has committed a heinous offence, the Juvenile Justice Board shall conduct a preliminary assessment with regard to the mental and physical capacity of such child to commit such offence, the ability of the child to understand the consequence of the offence and the circumstances in which the said offence was allegedly committed. The Board is entitled to take the help of experienced psychologists, psychosocial workers or other experts in the field. The explanation makes it clear that the preliminary assessment is not to go into the merits of the trial or the allegations against the child. The inquiry is conducted only to assess the capacity of the child to commit and understand the consequence of the offence. If the Board is satisfied that the matter can be disposed of by the Board, then the Board shall follow the procedure prescribed in summons cases under the Crpc.”

The court further stated that Section 19 of the act also empowers the children court to reassess the preliminary enquiry mentioned under section 15. Section 19 of the act reads as follow:

(1) After the receipt of preliminary assessment from the Board under section 15, the Children’s Court may decide that—

(i) there is a need for trial of the child as an adult as per the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) and pass appropriate orders after trial subject to the provisions of this section and section 21, considering the special needs of the child, the tenets of fair trial and maintaining a child friendly atmosphere;

(ii) there is no need for trial of the child as an adult and may conduct an inquiry as a Board and pass appropriate orders in accordance with the provisions of section 18.

(2) The Children’s Court shall ensure that the final order, with regard to a child in conflict with law, shall include an individual care plan for the rehabilitation of child, including follow up by the probation officer or the District Child Protection Unit or a social worker.

(3) The Children’s Court shall ensure that the child who is found to be in conflict with law is sent to a place of safety till he attains the age of twenty-one years and thereafter, the person shall be transferred to a jail:

Provided that the reformative services including educational services, skill development, alternative therapy such as counselling, behaviour modification therapy, and psychiatric support shall be provided to the child during the period of his stay in the place of safety.

(4) The Children’s Court shall ensure that there is a periodic follow up report every year by the probation officer or the District Child Protection Unit or a social worker, as required, to evaluate the progress of the child in the place of safety and to ensure that there is no ill-treatment to the child in any form.

(5) The reports under sub-section (4) shall be forwarded to the Children’s Court for record and follow up, as may be required.

The court further put emphasis on the section 21 of the act by stating that “which clearly lays down that no child in conflict with law shall be sentenced to death or life imprisonment without the possibility of release whether tried under the Act or under the IPC, or any other law.”

The court further observed that this court will follow the procedure laid down in the act until the parliament itself intent to deal with this. Therefore, the court disposes of the matter in favor of the child.

Conclusion

It is the need of an hour to focus on the juvenile crime rates. The acts enacted by the parliament and various state legislatures in proven to be not effective and one of the major reasons behind such failure is the poor implementation of such laws. Reducing the age of a juvenile from 18 years to 16 years is not a solution and the government and the legislature must take certain strict steps to take control of such offenses.