BY THE time it was acknowledged that he had been a minor when the offence he was accused of was committed, he had spent more than three years in an adult prison. Earlier this year, when a school-leaving certificate established that he was not 18 at the time of the crime, a trial court directed that he be tried as an adult, under provisions of a legal amendment that allows minors aged between 16-18 years to be prosecuted as adults in serious cases.
But in 2013, when he is alleged to have stabbed a man, the provisions of the Juvenile Justice Act as amended in 2015 were not in place, and could not be applied retrospectively.
Finally, last month, the Bombay High Court set aside a sessions court order and directed that his case be transferred to the Juvenile Justice Board. Now, even though he has spent more time behind bars than the maximum sentence that can be pronounced under the law, that too in an adult prison, he faces trial before the Board.
“I told the police as soon as I was arrested that I am 17 years old, but they refused to believe me. They said I looked older than 18,” says the boy, now 20.
Back in November 2013, barely 10 days after his father’s death, the Powai police arrested him for allegedly stabbing a man after a fight.
Despite his pleas that he was 17 years old, the boy was booked under Section 307 (attempt to murder) of the Indian Penal Code and kept in police custody for seven days before being sent to Arthur Road jail. The JJ Act prohibits anyone below 18 to be kept in police custody, or in judicial custody in an adult prison.
In a petition before the Bombay HC filed through his mother, the boy claimed that a medical test was also done to determine his age in 2013, which he says established he was a minor. This was not inquired into by the court, his plea says. “I was first sent to Arthur Road jail and kept there for five months before being shifted to Taloja jail in Navi Mumbai. I made many applications from the jail, seeking to be brought before court, but was barely produced a few times in the 16 months that I was lodged there,” the boy said.
Born to labourers, the boy had dropped out of school after Class III — there was no money to continue. Then, when he was 13, his father fell from the third floor of a building while carrying out repairs and was permanently disabled. By 2013, his father had taken to alcohol before he passed away.
“My mother cannot read or write. When I was arrested, she was told that I would be in the Observation Home in Dongri as I was a minor. She made several trips but could not find me there. She eventually went to Arthur Road jail, but by then I had been moved to Taloja,” he says. For over two years, he had no contact with his family while his mother tried to locate him.
Fortunately, just as his trial began, he managed to make contact with his mother, who eventually went to their native village and brought back his school-leaving certificate. This February, he filed an application claiming he had been a minor in 2013. But even after his age was established, the trial court concluded that he may be tried as an adult, under the new provisions of the law, by a children’s court in sessions court.
It was only after he was transferred to a children’s observation home on May 31 this year that a non-governmental organisation brought him legal help.
“There was a document on record, an age determination test, that put him in the bracket of a minor on the date of the offence. This was not enquired into by the lower courts. It’s a settled law that if two interpretations are possible, the one that favours the juvenile needs to be taken into consideration,” said advocate Anne TP, part of the team that represented the boy in the High Court.
Following the HC’s reversal of the lower court order, the boy was granted bail this July, though the case against him continues before the Juvenile Justice Board.
Now looking for a job, he hopes to put the past three years behind him. “I have spent over three-and-a-half years behind bars. If I get a job, I’m worried if I will get leave to attend these hearings,” he said.