The Juvenile Justice Act, 2015, is reformative and not retributive, the Bombay High Court has said. The HC made the observation in an order directing a 17-year old boy to be tried as a child in conflict with the law and not an adult under the amended Act.
The HC said that both the Juvenile Justice Board and the children’s court had not undertaken any independent assessment in their decision directing a 17-year old booked for the murder of a toddler to be tried as an adult.
As per an amendment to the Juvenile Justice (Care and Protection) Act, any child between the age group of 16-18 years can be tried as an adult in cases of heinous offences where the punishment is more than seven years imprisonment after an assessment by the JJ Board and subsequently by the appellate court, the special designated children’s court.
It said that if the Board evaluated such cases on the child’s capacity to commit and understand the consequences of the alleged offence, every case would become an open and shut one.
“I am afraid it ought to be more than that. The whole endeavour of the JJ Act is to save the child in conflict with law from the path of self-destruction and being a menace to society. It is reformative, not retributive,” Justice Dama Naidu said.
A 17-year old was booked for the murder of his three-year-old neighbour in Nagpada in 2016. The police had also booked a 16-year old boy. The JJ Board and children’s court, however, had said that the 16-year old should be tried only for the destruction of evidence since his role was alleged to be only after the victim was murdered by the other child in conflict with law. The HC accepted this contention and said that the order regarding the younger juvenile did not need interference.
Advocate Gayatri Gokhale, who represented the victim’s family, had submitted that the older juvenile had no justification for ‘committing such monstrous crime’ and that he should be tried as an adult.
The court relied on the Social Investigation Report submitted by the probation officer of the Observation Home where the older juvenile was lodged as well as the Mental Health Report by JJ Hospital as mandated by the JJ Act. “Neither report brings out into open any exceptional circumstances that compel the older juvenile to face the trial as an adult,” the court said.
It further said that only because the statute permits a child of 16 years and beyond to stand trial as an adult in case of heinous offence, it did not mean that all those children should be subjected to adult punishment. “It is not a default choice; a conscious, calibrated one. And for that, all the statutory criteria must be fulfilled,” the court said.