Delhi Mercedes hit-and-run case renews debate on juveniles tried as adults

Last December ‘The Juvenile Justice (Care and Protection of Children) Bill’, which provides for lowering the age for trial from 18 years, was passed by Rajya Sabha, amidst huge opposition. The bill was passed by Lok Sabha earlier. The new law provided that juveniles aged 16 years and above can be tried under laws for adults for ‘heinous crimes’. The backdrop of this major change in law was the impending release of the juvenile who was found in ‘conflict with law’ in the brutal rape and murder of 23 year old paramedical student, that send shockwave across the country in December 2012. [caption id=“attachment_2663518” align=“alignleft” width=“380”] Representational image. Reuters[/caption] On 4 April a ‘four-days-short-to-adulthood-juvenile’ allegedly hit a 32 year old Delhi resident Siddharth Sharma, while speeding his Mercedes in Civil Lines area. Sharma died on spot. The incident once again ignited the demand of the juveniles committing such ‘crimes’, to be tried as adults. The juvenile was alleged to be a ‘perpetual defaulter’, as he has been fined three times last year for driving-related offences — twice for speeding and once for incorrect parking and was just four days short of 18, when the incident took place. This was the reason placed before the juvenile justice board (JJB) for transferring the case to sessions court. The new law allows for juveniles 16 years or older to be tried as adults for heinous offences like rape and murder. Heinous offences are those which are punishable with imprisonment of seven years or more. Reportedly, Delhi police asked the JJB to consider the offence committed by the juvenile as ‘heinous’ hence to be tried as an adult. On Saturday juvenile justice board while allowing the Delhi Police application to forward the case to a regular court, said that the juvenile would be tried as an adult accused in the case. The juvenile was booked under Section 304 of IPC (Punishment for culpable homicide not amounting to murder) and not section 304A (Causing death by negligence) which is usually imposed in accident cases. The last time Delhi Police booked someone under culpable homicide in such a matter was 17 years ago in infamous BMW hit and run case where Sanjeev Nanda, then a Wharton Business School student, and son of Indian industrialist Suresh Nanda was the prime accused. While the punishment under section 304 extends to 10 years, under section 304A it extends to maximum of two years. However when tried under juvenile justice act, a delinquent can attract the maximum punishment of three years of stay at an observation home. Now as the case stands, being tried under section 304 of IPC and as an adult, the juvenile can attract maximum punishment possible in such cases. Amod K Kant, former IPS officer and founder of the NGO Prayas , which works for child rights, taking a very strong objection to the Board’s order says, “We have serious issues with the order. Firstly the particular crime in which this juvenile was allegedly involved does not qualify him to be tried as an adult. The reason being that, it was a case of accident which should have attracted section 304 A which offers maximum punishment of 2 years. And it cannot be taken as heinous crime”. He adds, “The juvenile justice board suffers serious infirmity. The basis on which a juvenile case can be transferred to an adult court is “preliminary assessment”. Preliminary assessment is legally debarred from taking any evidence on record. If you have not taken any evidence on record how do you decide that the child has committed an offence which can be termed as ‘heinous’. Further, the police is supposed to file only social investigation report at this stage and not chargesheet. The entire process seemingly followed by the police is flawed”. However, according to an Indian Express report , “the probe agency has requested the board to conduct a “preliminary assessment” of the boy’s mental and physical capacity “to understand the consequence of the offence” and pass an order if there is a need for trial of the minor offender as an adult.” Highlighting an important legal point Kanth adds, “Preliminary assessment is for finding out the maturity of the child. It is not get into evidence. Here if the Board is accepting evidence it is doing something blatantly wrong. The police cannot file evidence and the juvenile justice board cannot admit it at this stage” According to Kanth there is another problem of passing such order at this stage. “The question is that at this stage will the child be sent to lock-up. Will he be sent to police custody and jail? These are the issues which are being debated upon. And we are in process of formulating the rules. The government has asked for our comments on rules to be formulated. The rules are not yet finalised for a case like this so such decision is practically illegal", says Kanth.