Teenager in hit-and-run to be tried as ‘child’: Supreme Court

Court rues ‘unfortunate gap’ in Juvenile Justice Act; says remedy with Parliament

January 09, 2020 11:01 pm | Updated 11:16 pm IST - NEW DELHI

A view of the Supreme Court of India building in New Delhi. File

A view of the Supreme Court of India building in New Delhi. File

A loophole in the juvenile law will see a teenager who allegedly drove his father’s luxury car over a 32-year-old man in Delhi being tried as a child rather than an adult who has committed a heinous crime.

A Supreme Court Bench led by Justice Deepak Gupta on Thursday used its extraordinary powers under Article 142 of the Constitution to declare that a juvenile above 16 years of age, who commits an offence for which the Indian Penal Code (IPC) prescribes a maximum prison sentence of more than seven years but for which the minimum sentence provided is less than seven years or even no minimum jail term, should be tried as a “child” under the Juvenile Justice (Care and Protection of Children) Act, 2015. In such cases, a juvenile will not be tried as an adult in a regular court of law under the Code of Criminal Procedure.

That is, crimes committed by a juvenile between 16 and 18 years of age with a maximum prison sentence of seven years or above, but with no minimum sentence or less than seven years minimum sentence prescribed, would not be treated as ‘heinous’ crimes.

They would only be tried as “serious” offences under the Juvenile Justice Act till Parliament amends the statute to fill the “unfortunate gap”, the apex court said.

The 2015 Act was enacted after the juvenile involved in the Nirbhaya gangrape and murder saw reduced punishment while his fellow accused faced the death penalty. The juvenile law was amended to categorise crimes committed by minors into three - ‘petty’ offences with a maximum jail term of three years; ‘serious’ offences with a prison sentence of up to seven years; and ‘heinous’ offences like rape, murder and terrorism with a minimum prison sentence of seven years and above. In heinous offences, a juvenile above 16 years of age could be tried like an adult and even punished with life imprisonment or death penalty.

Justice Gupta however concluded that the 2015 Act made a “gross mistake” by not taking into account a fourth category of offences under the IPC.

These were offences like counterfeiting and homicide not amounting to murder - as in the present case - for which the maximum punishment was seven years or above and for which no minimum sentence is prescribed or a less than seven-year minimum sentence was provided under the IPC.

The court declared that these fourth category of crimes cannot be treated as heinous crimes under Section 2(33) of the 2015 Act. They have to be tried as ‘serious offences’ before a Juvenile Justice Board and not a regular court of law till the Parliament takes a call. The court justified that it cannot turn the vacuum in the law against children.

In the present case, the juvenile, who was aged over 16 at the time of the alleged crime, was charged under Section 304 of the IPC (homicide not amounting to murder), which is punished with a maximum sentence of life sentence or 10 years but for which no minimum sentence is prescribed.

Hence, the apex court decided that the crime should not be tried as a heinous one under the Code of Criminal Procedure. The teenager would now be tried under the juvenile law for the commission of a serious offence.

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