Third and Fourth Periodic Report on CRC - Unicef

<strong>Third</strong> <strong>and</strong> <strong>Fourth</strong> <strong>Periodic</strong> <strong>Report</strong>
33. (6) A person who has attained the age of 16 years on the date of commencement of the hearing of the charge shall
not be tried for any offence by a Juvenile Court, but where in the course of any trial before a Juvenile Court the child or
young person to whom the trial relates attains the age of 16 years, nothing in this subsection shall prevent the Juvenile
Court, if it thinks fit, from proceeding with the trial <strong>and</strong> dealing with the child or young person in accordance with the
provisions of this Act."
In view of the international covenants, declarations <strong>and</strong> other instruments, we feel inclined to the view that the relevant date
must be the date on which the offence is committed, otherwise the whole thrust of the law to protect those who are immature,
impetuous, unwary, impressionable, young, fickle-minded <strong>and</strong> who do not know the consequences of their act, would be
lost. It is the mental capacity of the offender at the time of committing the offence which is of crucial importance. It was
observed in the case of Pratap Singh v. State of Jharkh<strong>and</strong> <strong>and</strong> another, 2005 (3) SCC 551 as follows:
"Children Act was enacted to protect young children from the consequences of their criminal acts on the footing that their
mind at that age could not be said to be mature for imputing mens rea as in the case of an adult. This being the
intendment of the Act, a clear finding has to be recorded that the relevant date for applicability of the Act is the date on
which the offence takes place. It is quite possible that by the time the case comes up for trial, growing in age being an
involuntary factor, the child may have ceased to be a child."
Thus the Supreme Court of India settled the issue over-turning one of their earlier decisions in the case of Arnit Das v. State
of Bihar, 2000 (5) SCC 488. We may also add that the relevant laws of a vast majority of the countries looked at by us take
the date of the offence to be the relevant date for applicability of the Act. In at least two decisions of our High Court Division,
Bablu (supra) <strong>and</strong> State vs Deputy Commissioner, Satkhira (supra), the relevant date has been taken to be the date of
occurrence, which we believe, with respect, is the correct approach. On the other h<strong>and</strong> there are many decisions of our
superior courts holding the view that the relevant date is the date of framing charge or commencement of trial. In our humble
<strong>and</strong> respectful view, this mis-interpretation arose initially due to the inaptly applied wording of section 6(1) of the Act, which
provides as follows:
"6. No joint trial of child <strong>and</strong> adult.-(1) Notwithst<strong>and</strong>ing anything contained in section 239 of the Code or any other law
for the time being in force, no child shall be charged with, or tried for any offence together with an adult."
Dr. Malik submitted that this provision is concerned with the matter of separate trial for children <strong>and</strong> does not lay down the
point in time at which the age will be relevant for the purpose of determining whether the accused is a child. We are inclined
to agree with this submission, particularly in view of the stance taken by the Indian Supreme Court, bearing in mind the
similar provision which exists in the (Indian) Juvenile Justice (Care <strong>and</strong> Protection of Children) Act,
2000:
"18. No joint proceeding of juvenile <strong>and</strong> person not a juvenile.-(1) Notwithst<strong>and</strong>ing anything contained in section 223
of the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law for the time being in force, no juvenile shall be
charged with or for any offence together with a person who is not a juvenile."
We have noted earlier that the Indian Supreme Court has decided that the relevant date is the date of commission of the
offence <strong>and</strong> not the date of trial.
The view taken by the courts in Australia can be gauged from the decision in Jason Joseph Braun V R Eric Ebatarintja
V R decided on 14 March 1997 by the Court of Criminal Appeal of The Northern Territory of Australia, (as reported in
Australian- Northern Territory <strong>Report</strong>) where it was deliberated as follows:
"Is the Court's jurisdiction affected if the accused has "attained the age of 17 years" by the time be appears before it
charged with offences he committed before he attained the age of 17? That question was squarely posed <strong>and</strong> answered
by Muirhead J 11 years ago in Seears v Oldfield (1985) 36 NTR 65; his Honour said at 70: "Having considered the matter
<strong>and</strong> the authorities, I am satisfied that the age of the person charged when he or she committed the alleged offence is
the critical test of the jurisdiction of the Juvenile Court".
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