IMPORTANT POINT
A child who has not committed heinous offence cannot be transferred to Children’s Court.

JUDGMENT

Mridula Bhatkar, J.—Rule. Rule made returnable forthwith. By consent of the parties, the Petition is heard finally and disposed of at the stage of admission.

2. In this Petition, the order dated 19th January, 2018 passed by Juvenile Justice Board, Sangli District below exhibit 1 in J.C. No. 145 of 2017 and also the order dated 13th July, 2018 passed by Juvenile Justice Board, Sangli below exhibit 1 in J.C. No. 145 of 2017 are challenged.

3. The legal issue is raised as follows:—

Whether a child, who has not committed heinous offence can be transferred to Children’s Court?

4. The present petitioners were not adult when an offence of attempt to commit murder punishable under section 307 of Indian Penal Code, 1860 (of “IPC”) was committed. They all were about 17 years old, but below 18 years of their age. Therefore, admittedly, they fall within the definition of section 2 (12) of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as “the said Act”).

5. Under section 2 (12) of the said Act, “child” means a person who has not completed eighteen years of age.

6. As all the petitioners were about 17 years old, but below 18 years old, Juvenile Justice Board referred them to a psychologist for assessment by an order dated 19th January, 2018. Pursuant to the said order, assessment report as per section 15 of the said Act was placed before Juvenile Justice Board, Sangli. The Board has considered the facts of the case and also interacted with Child in Conflict with Law (CCL) and made their assessment that the mental as well as physical capacity of CCL was sufficient to commit crime. All the three petitioners were aware about the consequences and they have voluntarily participated in the offence and, therefore, Juvenile Justice Board transferred the matter to Children’s Court as per section 18 (3) of the said Act.

7. The learned counsel for the petitioners has submitted that the petitioners being “child” if not have committed heinous crime, then they are to be tried by Juvenile Justice Board and not to the Children’s Court. He has further submitted that if they are tried by Children’s Court, then prejudice will be caused to them in view of rigor section 19 of the said Act.

8. The learned APP has submitted to the orders passed by this Court.

9. Under section 15 of the said Act, preliminary assessment in respect of offence whether is heinous, is to be made by Juvenile Justice Board. The word “heinous offences” is defined under section 2 (33) of the said Act, which states as follows:—

“2(33). “heinous offences” includes the offences for which the minimum punishment under the Indian Penal Code (45 of 1860) or any other law for the time being in force is imprisonment for seven years or more”.

10. Section 2 (54) of the said Act defines “serious offences” includes the offences for which the punishment under the Indian Penal Code (45 of 1860) or any other law for the time being in force, is imprisonment between three to seven years.

11. Under section 307 of IPC, minimum punishment is not prescribed, but punishment may exten d to ten years and fine, and if hurt is caused to any person, then punishment can be extended upto life imprisonment.

12. Thus, due to the benchmark of minimum punishment of 7 years or more, section 307 of IPC cannot fall within the ambit of heinous offences.

13. Section 15 of the said Act states as under:—

“15. Preliminary assessment into heinous offences by Board.—

(1) In case of a heinous offence alleged to have been committed by a child, who has completed or is above the age of sixteen years, the Board shall conduct a preliminary assessment with regard to his mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence, and may pass an order in accordance with the provisions of subsection (3) of section 18:

Provided that for such an assessment, the Board may take