Observing that sending a child for trial to the children’s court as an adult is an “exception” as per the Juvenile Justice Act, a special judge has transferred two cases back to the Juvenile Justice Board (JJB) for rehearing. Transferring the case, a special children’s court observed that the order passed by the principal magistrate of the JJB on August 16, 2016, which stated that two children in conflict with law can be tried as adults, was “not as per law”.
The special judge added that the order was signed only by the principal magistrate as it also mentioned the words “I” and “in my view”. The court observed that the magistrate had “acted singularly” and “had not taken into consideration the view of other members”. “Rather, it is apparent from the order that other members were not present when the order was passed,” said the judge, pointing out that as per the JJ Act presence of at least two members was mandatory at the time of final disposal of the case or, under Section 18 (3) of the JJ Act, when transferring the matter to the children’s court.
“It is necessary to make a mention here that presence of other members in the board is with an object that the order passed should not only be a legal order but it should have a social touch by considering the social background of the CCLs (children in conflict with law), the circumstances under which they committed the offence and whether they were having capacity to understand the consequences of the act. So, keeping in view the very object of the JJ Act sending the child for trial to the children’s court as adult is an exception,” the judge added.
The judge added that this requires the magistrate of the JJB to be “very cautious” to see that all conditions of the section under the JJ Act were strictly complied with. Advocates for the two boys had submitted that they were not produced before the JJB for preliminary assessment as per the JJ Act. They had contended that the order was “mechanically passed”.
The court, while setting aside the JJB’s order, directed it to rehear the case and provide a fair opportunity to the children in conflict with law. It has also directed that preliminary assessment of all the children in conflict with law be done within three months.
In July, the court had transferred another case to the JJB for a rehearing after it found that it was passed only by the principal magistrate. Under the JJ Act, 2015, children between the ages of 16 and 18 years can be tried as adults if they have committed ‘heinous’ offences. After conducting a preliminary assessment, the JJB can transfer a case to a children’s court, which has to then conduct its own assessment and decide whether the case has to be sent back to the JJB or the child be tried as an adult before it.