Third and Fourth Periodic Report on CRC - Unicef

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<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". 154
Convention on the Rights of the Child The learned Judges went on to hold: "We accept for the purpose of these proceedings the approach to dealing with accused persons who have turned 17, first expressed by Muirhead J in relation to the Juvenile Court in Seears v Oldfield (supra), <strong>and</strong> adopted as regards the Supreme Court in R v Williams (supra) <strong>and</strong> the other authorities mentioned (p6)." We also bear in mind that the whole purpose of the Act may be defeated by the capricious dealings of the investigating agency, who may intentionally or whimsically delay the investigation <strong>and</strong> thereby deprive the accused the benefits of the Act. It is the act of the youthful offender done in a moment of indiscretion due to his lesser mental faculty that is being targeted by the Act. Therefore the relevant point in time at which to qualify for the benefits of the Act must be the time of the commission of the offence. We may refer to the reasoning found in a decision of the US Supreme Court, "[a] lack of maturity <strong>and</strong> an underdeveloped sense of responsibility are found in youth more often than in adults <strong>and</strong> are more underst<strong>and</strong>able among the young. These qualities often result in impetuous <strong>and</strong> ill considered actions <strong>and</strong> decisions." Johnson Johnson v. Texas, 509 U. S. 350, 359-362 (1993). In the light of our views above <strong>and</strong> bearing in mind the views already expressed by our Superior Courts, we would, with respect suggest that the ‘relevant date’ aspect for the purpose of jurisdiction of the Juvenile Court may be rethought <strong>and</strong> brought into line with the aims <strong>and</strong> purports of the children’s legislation worldwide. THINKING AHEAD: So far as our Children Act, 1974 is concerned, it must be commended as a forward-thinking piece of legislation, which encompasses much of the suggestions <strong>and</strong> directives of the international covenants <strong>and</strong> other instruments discussed above. However, it is 32 years old <strong>and</strong> was enacted long before the UNCRC of 1989. In relation to juveniles in conflict with the law the UNCRC provides in Article 40 as follows: "Article 40 1. States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity <strong>and</strong> worth, which reinforces the child's respect for the human rights <strong>and</strong> fundamental freedoms of others <strong>and</strong> which takes into account the child's age <strong>and</strong> the desirability of promoting the child's reintegration <strong>and</strong> the child's assuming a constructive role in society. 2. To this end, <strong>and</strong> having regard to the relevant provisions of international instruments, States Parties shall, in particular, ensure that: (a) No child shall be alleged as, be accused of, or recognized as having infringed the penal law by reason of acts or omissions that were not prohibited by national or international law at the time they were committed; (b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees: (i) To be presumed innocent until proven guilty according to law; (ii) To be informed promptly <strong>and</strong> directly of the charges against him or her, <strong>and</strong>, if appropriate, through his or her parents or legal guardians, <strong>and</strong> to have legal or other appropriate assistance in the preparation <strong>and</strong> presentation of his or her defence; (iii) To have the matter determined without delay by a competent, independent <strong>and</strong> impartial authority or judicial body in a fair hearing according to law, in the presence of legal or other appropriate assistance <strong>and</strong>, unless it is considered not to be in the best interest of the child, in particular, taking into account his or her age or situation, his or her parents or legal guardians; 155
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Third and Fourth Periodic Report on CRC - Unicef

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