A horror unfolded on the streets of Pune in the wee hours of Sunday. A speeding Porsche allegedly driven by a 17-year-old boy rammed into a motorcycle in the city’s Yerwada area, killing two young techies in their 20s. After the accused was leniently granted bail by the Juvenile Justice Board, an outrage ensued. The minor should be tried like an adult, demands the victim’s family, the Pune Police, and politicians. But is that a possibility? What does the law say?
The teen was driving drunk, beyond the permissible limit as per the law, at over 160 kmph, as per the police reports, and had confessed that his father, Vishal Agarwal, a prominent builder, knew about it. Agarwal was arrested, since the accused is a minor, under sections 75 and 77 that deal will “willful neglect of a child” and supplying a child with “intoxicating liquor or drugs”.
The Pune Police FIR says Agarwal allowed his son to drive the car despite knowing that the Porsche was unregistered since Agarwal did not pay the road tax and his son did not have a driving licence.
HOW DOES A CHILD GET TRIED AS AN ADULT?
The Juvenile Justice (Care and Protection of Children) Amendment Bill, 2021, which sought to amend the Juvenile Justice Act, 2015, was passed in Rajya Sabha on July 28, 2021. The JJB under Section 15 of the Juvenile Justice Act, 2015 assesses if a juvenile can be tried as an adult. There are three categories of crime under which a child can be tried – petty offences, serious offences and heinous offences.
According to the 2015 Act, juveniles charged with heinous crimes and who are between the ages of 16 to 18 years can be tried as adults. For a Child in Conflict with Law (CCL) to be tried as an adult, age on the date of the offence decides whether the accused was an adult or a child.
As per Section 15, if a child allegedly commits a heinous crime, the Juvenile Justice Act provides the Board to conduct a preliminary assessment regarding his mental and physical capacity to commit such offence, ability to understand consequences of the offence and the circumstances in which he allegedly committed the crime. The Section 18(3) further suggests that if after the preliminary assessment, the Board passes an order that there is a need for trial of a child as an adult, then his case will be transferred to the Children’s Court having jurisdiction to try such offences.
WHAT ARE DIFFERENT CRIMES AND THEIR PUNISHMENT?
Heinous offences, including sexual offences and violent sexual crimes, attract a maximum punishment of seven years or more.
According to the amendments, for a juvenile to be tried for a heinous crime as an adult, the punishment of the crime should not only have a maximum sentence of seven years or more but also a minimum sentence of seven years. The provision has been made to protect children and keep them out of the adult justice system.
Juveniles can also be tried under Narcotic Drugs and Psychotropic Substances (NDPS) Act, Arms Act, Unlawful Activities (Prevention) Act, Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, Terrorist and Disruptive Activities (Prevention) Act, Maharashtra Control of Organised Crime Act and Food Safety and Standards Act.
Serious offences include possession and sale of illegal substances like drugs and alcohol. The punishment under this category is maximum of seven years, and minimum punishment is not prescribed or is less than seven years.
CHANGES BROUGHT IN THE ACT
The gang-rape and murder of a 23-year-old woman in a moving bus in Delhi in December 2012 led to countrywide protests over letting off one of the six accused as minor. Following the crime, the Ministry of Women and Child Development proposed changes to the law to punish juvenile offenders, citing an increase in cases of offenders in that group.
There were demands to reduce the age of juvenile from 18 to 16, which faced opposition from child rights activists. The JS Verma Committee, formed to recommend amendments to the law, also stated that it was not inclined to reduce the age of a juvenile to 16. The amendment was made in 2015.
All the six accused were convicted for the rape and killing of the physiotherapy student. While four were executed in Tihar jail in March 2020, one died in jail. The juvenile convict was released in 2015 after serving three years in a reform facility.
CASES IN INDIA
In September 2023, in a rare order, a Delhi court had directed the prosecution of two 17-year-olds as adults in a murder case. The court noted that the two were well aware of the JJB proceedings and executed their conspiracy to murder the victim “in a perfectly planned manner”. “…a detailed account of the manner in which the offence was committed leaves no doubt in mind to conclude that they deserve to be tried as adults. Accordingly, the present appeal is allowed,” the court added.
In June 2022, six accused were arrested for the gangrape of a teenage girl in Hyderabad. The police commissioner had said the five accused will be tried as adults in the case. Two of the accused are the son and the nephew of an All India Majlis-e-Ittehadul Muslimeen (AIMIM) MLA and the third is son of a Telangana politician. In 2019, a 17-year-old was awarded two life sentences by a local court in Hyderabad after he was tried as an adult in a sodomy and murder case of a 10-year-old boy.
In the sensational 2017 murder case of a seven-year-old boy in Gurgaon’s Ryan International School, the Juvenile Justice Board recommended that the Class 9 student responsible for the killing should be tried as an adult. An appeal is pending before the Supreme Court. In 2016, a 17-year-old from Mumbai was booked for the murder of a three-year-old child. The Mumbai city Juvenile Justice Board and the children’s court ordered that he be tried as an adult under the Juvenile Justice Act, 2015. However, in July 2022, the Bombay High Court set aside the ruling and directed that the accused be tried as a minor, saying, “For an adult offender, prison is the default opinion; for a juvenile it is the last resort”.
Even the introduction of the new criminal law Bhartiya Nagrik Suraksha Sanhita, 2023 does not change the scenario since it also does not prescribe any minimum punishment for cases where the act is done with the knowledge of causing death. So there is an urgent need for an amendment in the provision so that it conforms and is consistent with the gravity of such acts.
The Pune Porsche Crash Case is a glaring example of the lacunae in the law. The minor driver was drunk, rash, and negligent and still the JJB left him scot-free with reprimands of a non-serious nature. The JJB was duty-bound to follow the letter of the law and the law of the land. But this clearly reflects that this law needs change.
The writer is an Associate Professor in Seedling School of Law and Governance, Jaipur National University, Jaipur.
