The Supreme Court issued notice to the Centre on Monday seeking its response to whether the discretion to decide the level of maturity of a juvenile charged with an offence should be vested with the trial court, before remanding him for trial to the Juvenile Justice Board.

At present, a Magistrate cannot exercise his discretion. He has to send the juvenile for trial before the JJ Board.

A Bench of Justices B.S. Chauhan and S.A. Bobde was hearing a petition filed by the parents of the December 16, 2012 gang-rape victim challenging the constitutional validity of the Juvenile Justice (Care and Protection of Children) Act, to the extent that it grants protection to a juvenile offender in a criminal case to be tried by a Juvenile Justice Board.

Counsel Aman Hingorani argued that the provisions of the JJ Act denying criminal courts jurisdiction to try a juvenile offender under the Indian Penal Code were in conflict with the law and, as such, unconstitutional.

The victim’s parents said they were aggrieved by the order passed by the JJ Board awarding three-year sentence to the juvenile involved in the gang-rape. The other four accused were awarded the death penalty. They sought a similar trial for the juvenile offender, who was now a major. “The blanket protection to juvenile offenders from being tried by the criminal courts for offences under the IPC is an instance of legislative adjudication and hence unconstitutional,” the petition said. “The legislature cannot make relevant circumstances irrelevant, deprive the courts of their legitimate jurisdiction to exercise their discretion or compel them to shut their eyes. It is equally well settled that the legislature has no power to take cases out of the settled course of judicial proceedings or to infringe upon the peculiar and appropriate functions of the judiciary.”

The bench directed that the matter be listed for further hearing on January 6, 2014.

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