Memorial on Behalf of Petitioner 1

BLCRL26

THE HON’BLE HIGH COURT OF BANGLA

THE WRIT IS FIELD UNDER ARTICLE 32 COSTITUTION OF

INDICA, 1950

IN THE CIVIL APPEAL NO: 124/2015

IN THE MATTER OF

PEOPLES’ CONSCIENCE PETITIONER

V.

UNION OF INDICA AND ANR. RESPONDENT

WRITEEN SUBMITTION ON THE BEHALF OF PETITIONER

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 Memorial on Behalf of Petitioner 2

1 TABLE OF CONTENTS
LIST OF ABBREVITION ...................................................................................................... 3

INDEX OF AUTHORITIES ................................................................................................... 4

STATEMENT OF JURISDICTION ...................................................................................... 6

STATEMENT OF FACTS ...................................................................................................... 7

ISSUES OF CONSIDERATION ............................................................................................ 9

SUMMARY OF ARGUMENTS ........................................................................................... 10

WRITTEN SUBMISSIONS .................................................................................................. 12

1.1 Whether incorporating international concept of age of Criminal responsibility a

juvenile may be punishable under penal law? ...................................................................... 12

1.2 Whether ossification test shall be preferred over matriculation certificate as

appropriate method to determine the age of juvenile? ......................................................... 14

1.3 Whether on interpretation of law, the juvenile will be liable to be tried under the penal
law of the land in regular Criminal Court along with other accused?.................................. 16

1.3.1 Whether the juvenility will depend upon the nature of offence committed as in
the existing scenario most of the juveniles are engaged in horrendous and heinous crimes
like rape, murder and drug-peddling etc.? ........................................................................ 18

1.4 Whether the writ filled by the petitioner is valid or not? .......................................... 23

PRAYER ................................................................................................................................. 24

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 Memorial on Behalf of Petitioner 3

LIST OF ABBREVITION

1. AIR All India Reporter

2. Cri LJ / Cr LJ Criminal Law Journal

3. Cr.P.C. Code of Criminal Procedure

4. v./vs. Versus

5. Ed. Edition

6. Sec. Section

7. PW Prosecution Witness

8. DW Defence Witness

9. SC Supreme Court

10. SCC Supreme Court Cases

11. JJB Juvenile Justice Board

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 Memorial on Behalf of Petitioner 4

INDEX OF AUTHORITIES

LIST OF CASES.
1. Subramanian Swamy and Ors.vs. Raju Anr., MANU/SC/0248/2014;
AIR2014SC1649;
(2014)8SCC390.
2. P. T. Services vs. S.I. Court, Air 1963 3 SCR 650

3. Dadu v. State of Maharashtra MANU/SC/0637/2000: (2000) 8

SCC 437
4. Mithu v. State of Punjab MANU/SC/0065/1983: (1983) 2
SCC 277
5. Parag Bhati vs. State of Uttar Pradesh and CRIMINAL APPEAL NO. 486
Anr. OF 2016
6. Nazir Hossain Halder vs the State, (1998)2 CALLT 15 HC,
1998CriLJ 1720

STATUTES AND LEGISLATIONS

 Constitution of India, 1950
 The Juvenile Justice (Care and Protection of Children) Act, 2000 (Act No. 56 of 2000)
Justice
 The Juvenile Justice (Care and Protection of Children) Rules, 2007.
 The Juvenile Justice Model Rules, 2007
 The Indian Penal Code, 1860
MISCELLANEOUS
 P. M. BAKSHI, THE CONSTITUTION OF INDIA, 194 (12TH ED. 2014)
 Shorter Constitution of India by D. D. Bashu, 14th Edition 2009.
 M.P Jain, Indian Constitutional Law, 6th Edition, Reprint 2012.
 http://www.legalserviceindia.com/
 https://indiankanoon.org/
 http://www.manupatrafast.in/pers/Personalized.aspx
 https://www.unicef-irc.org/
INTERNATIONAL CONVENTIONS
 Minimum Age Convention (1973)

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 Memorial on Behalf of Petitioner 5

 The United Nations Rules for the Protection of Juveniles Deprived of their Liberty,
1990 (Havana Rules).
 United Nations Standard Minimum Rules for the Administration of Juvenile Justice,
1985 (Beijing Rules);
 The Convention of the Rights of the Child, 1990 (CRC);

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 Memorial on Behalf of Petitioner 6

STATEMENT OF JURISDICTION

It is humbly submitted that the petitioner has approached the Hon’ble High Court
of Bangla, Indica invoking as its jurisdiction under Article 32, 129 and 142 of the
Constitution of India.

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 Memorial on Behalf of Petitioner 7

STATEMENT OF FACTS
On the 1 March, 2015, a young girl, aged about nineteen years was was brutally assaulted
sexually, and thereafter was bathed in country liquor and set ablaze when she was returning
from her tuition classes, situated around three kilometers away from her parental home, in
Golpur District of State Bangla.
She was riding her bicycle back home, and was forcibly stopped by a group of five persons,
adjacent to a barn which happens to be deserted by the owners and falls in the way home of the
girl. The persons took advantage of the fact that the road was deserted at point of time, and
forcibly dragged the girl to the barn, after gagging her mouth, so that the girl could not even
shout for help.
The girl received fatal burns of the third degree, and succumbed to her wounds on March 3rd,
2015.
On the basis of her dying declaration, all five persons were apprehended in connection with the
crime. One of them, identified for the purpose of the present case as Rana, was below eighteen
years of age on the date of commission of the crime, and is still a Juvenile as per meaning given
in Juvenile Justice Act, 2000.
Accordingly, in compliance with the provisions of the Juvenile Justice Act, 200 his case was
referred for inquiry to the Juvenile Justice Board.
The other accused were tried in a regular sessions court and have been found guilty, inter alia,
of the offences under Section 376D and Section 302 of the Indican Penal Code, 1860.
The learned trial court has sentenced them to death. Their appeal against the aforesaid
conviction and the sentence imposed has since been dismissed and the High Court of Bangla
has confirmed the death penalty.
Before the Juvenile Justice Board to whom the case of Rana was referred for inquiry, the
petitioners had filed applications for their impleadment to enable them to ‘prosecute’ the
juvenile alongside the public prosecutor and it was also claimed that, on a proper interpretation
of the Act, the juvenile was not entitled to the benefits under the Act but was liable to be tried
under the penal law of the land in a regular criminal court along with the other accused.
However, insofar as the interpretation of the provisions of the Act for determination of the
question whether the offence(s) allegedly committed by the juvenile is to be inquired into by
the Board or the Juvenile is required to be tried in a regular criminal court is concerned, the
Board on July 25th, 2015 had expressed its inability to decide the same and had directed the

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 Memorial on Behalf of Petitioner 8

petitioners to seek an authoritative pronouncement on the said issue(s) from the Hon’ble High
Court.
The petitioners instituted a writ proceeding before the Hon’ble High Court of Bangla, which
was registered as Writ Petition (Crl.) No. 124 of 2015

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 Memorial on Behalf of Petitioner 9

ISSUES OF CONSIDERATION
I. Whether incorporating international concept of age of Criminal responsibility a
juvenile may be punishable under penal law?

II. Whether ossification test shall be preferred over matriculation certificate as

appropriate method to determine the age of juvenile?

III. Whether on interpretation of law, the juvenile will be liable to be tried under the
penal law of the land in regular Criminal Court along with other accused?

IV. Whether the writ filled by the petitioner is valid or not?

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 Memorial on Behalf of Petitioner 10

SUMMARY OF ARGUMENTS
ISSUE-1.1

Whether incorporating international concept of age of Criminal responsibility a juvenile

may be punishable under penal law?

Incorporating in the Act, the International concept of age of criminal responsibility and diluting
the blanket immunity provided to the juvenile offender on the basis of age. Whether the
judiciary systems of different countries are treating the child below 17 years are juvenile, and
the child having age more than 17 years may be treated as adult and their punishment may be
enhanced up to what adults are liable for the offence in penal law. So the law should be
interpreted with making consideration of medial, physical and psychological conditions of a
child.
ISSUE-1.2

Whether ossification test shall be preferred over matriculation certificate as appropriate

method to determine the age of juvenile?

Whereas by ossification test we are able to know the real age of person as it is scientific method
to know the age. Ossification give the scientific prove of the age so it should be preferred over
matriculation. Juvenile accused, who is involved in grave and serious offence which he
committed and gave effect to it in a well-planned manner reflecting his maturity of mind rather
than innocence indicating that his plea of juvenility is more in the nature of a shield to justice,
and cannot be allowed to come to his rescue. Hence, Ossification give the scientific prove of
the age so it should be preferred over matriculation.

ISSUE- 1.3

Whether on interpretation of law, the juvenile will be liable to be tried under the penal
law of the land in regular Criminal Court along with other accused?

Though the Juvenile Justice Act gives certain kinds of protection to juveniles and their matters
are looked after by the Juvenile Justice Board. But looking into the grievousness of the offence
committed by the juvenile and after going through section 28 to be read with Section 28 of the
Juvenile Justice (Care and Protection of Children) Act, 2000 its seems that Juvenile Justice Act
also provide that some liberties can be taken to send the juvenile cases to normal courts as per
the grievousness of the offence of the cases. The juvenility should depend upon the nature of

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 Memorial on Behalf of Petitioner 11

offence committed as in the existing scenario most of the juveniles are engaged in horrendous
and heinous crimes like rape, murder and drug-peddling in previous era, there was the
information gap among the juvenile and the outer world. They were not having the proper
understanding of the acts and their consequences. Hence the juvenile should be punished under
penal law.

ISSUE- 1.4

Whether the writ filled by the petitioner is valid or not?

The ban on jurisdiction of criminal courts by Section 7 of the Act is unconstitutional in as much
as it virtually ousts the criminal justice system from dealing with any offence committed by a
juvenile. The proceedings against the juvenile Raju held by the JJ Board are, therefore, null
and void and the said juvenile is liable to be tried by a competent criminal court in accordance
with the procedure prescribed.

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 Memorial on Behalf of Petitioner 12

WRITTEN SUBMISSIONS
1.1 Whether incorporating international concept of age of Criminal responsibility a
juvenile may be punishable under penal law?
1. Incorporating in the Act, the International concept of age of criminal responsibility and
diluting the blanket immunity provided to the juvenile offender on the basis of age. The
Act, as manifestly clear from the Statement of Objects and Reasons, has been enacted to
give full and complete effect to the country’s international obligations arising from India
being a signatory to the three separate conventions delineated hereinbefore, namely, the
Beijing Rules, the UN Convention and the Havana Rules. However the international law
are not clear about serious and heinous acts committed by a juvenile.
2. In Greece under Civil law a minor is a person who has reached the age of 18 (Civil Code
article 127) while under penal law a minor is a person who has reached the age of 17 (Penal
Code article 121). Greece recognizes the concept of the age of criminal responsibility for
young persons in conformity with the terms of article 40 (3)1 of the Convention on the
Rights of the Child (CRC). A minor is a person between seven and seventeen years of age,
inclusive. The minimum age for criminal responsibility is twelve years of age, completed.
Underage persons who have not completed twelve years of age children shall not be held
criminally responsible. A person bears limited criminal responsibility in his or her
thirteenth year (12 years and one day) up to seventeen years (juveniles)2.
3. In case of Subramanyam Swami3 honourable court found that the general policy of law in
the UK is (i) juveniles under 18 years, especially under 15 years, should be tried as far as
possible by the Youth Court, reserving trial in the Crown Court for serious cases, and (ii)
first time offenders aged 12-14 years and all offenders under 12 years should not be
detained in custody. “Detention and Training Orders” may be given to an offender aged
12-17 years, the first half of which is served in custody and the second half is served in the

1
Article 40 (3) States Parties shall seek to promote the establishment of laws, procedures, authorities and
institutions specifically applicable to children alleged as, accused of, or recognized as having infringed the penal
law, and, in particular: (a) The establishment of a minimum age below which children shall be presumed not to
have the capacity to infringe the penal law; (b) Whenever appropriate and desirable, measures for dealing with
such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully
respected. 4. A variety of dispositions, such as care, guidance and supervision orders; counselling; probation;
foster care; education and vocational training programmes and other alternatives to institutional care shall be
available to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both
to their circumstances and the offence, Convention on the Rights of the Child.
2
https://www.cairn.info/revue-internationale-de-droit-penal-2004-1-page-355.htm
3
Subramanian Swamy and Ors.vs. Raju Anr., MANU/SC/0248/2014; AIR2014SC1649; (2014)8SCC390.

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 Memorial on Behalf of Petitioner 13

community. These usually last between 4 months and 2 years. Honourable court further
observed that:

“Extended” custodial sentences are given to young persons if their crime is so serious
that no other alternative is suitable, or if the young person is a habitual offender, or if
the Judge thinks the person is a risk to public safety. Under S.91 of the Powers of
Criminal Courts (Sentencing) Act, 2000, a person below 18 years who is convicted of
a serious offence, may be sentenced to a period not exceeding the maximum term of
imprisonment for adults, including life. Accordingly its means that they (juvenile) may
punished as adult. The place of detention is a young offender institution. Further it was
found that the Sentencing Guidelines provide that a sentence exceeding 2 years in
respect of youth aged 12-17 years and accused of a grave offence should be made only
when such a sentence is a “realistic possibility”. Instances of such offences include
sexual assault. Where a person is convicted of murder, he must be sentenced to
detention at Her Majesty’s pleasure. Rape is defined as unwanted penetration, whether
that is oral, anal or vaginal. Sexual assault refers to any unwanted sexual contract,
including fondling and molestation. Here in the present case the realistic state is such
that the juvenile is liable of rape and murder which is much more serious offence and
heinous crime than a sexual assault.

The US has a relatively high rate of juvenile delinquency. In 2011, the number of
juvenile delinquents was 129,456 out of a population of 250 million. Although the
traditional age of majority is 18 years, nearly all States permit persons less than 18 years
to be tried as adults. The state of New York pegs the age of juvenility at 16 years, and
permits the prosecution of persons aged between 13-16 years as adults in case of
serious crimes. In Florida, the prosecutor has discretion to decide whether to try the
juvenile as such or as an adult, owing to concurrent jurisdiction of the juvenile and
ordinary criminal courts.

4. Here, the judiciary systems of different countries are treating the child below 17 years are
juvenile, and the child having age more than 17 years may be treated as adult and their
punishment may be enhanced up to what adults are liable for the offence in penal law.

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 Memorial on Behalf of Petitioner 14

1.2 Whether ossification test shall be preferred over matriculation certificate as

appropriate method to determine the age of juvenile?
5. Ossification test is basically an inferential study into the correlation between age and bone
density. Our body goes with biological change every day this biological changes cannot be
proved by the matriculation certificate or any piece of paper baring date of birth. Many a
times person change their original age in certificate to enjoy the government job for longer
period of time. Documentary proves can be easily manipulated. Whereas by ossification
test we will be able to know the real age of person as it is scientific method to know the
age. It puts the documents about the scientific proof which sets the primacy of the
certificate. Ossification give the scientific prove of the age so it should be preferred over
matriculation.
6. In case Nazir Hossain Halder vs the State4, there was difference between the age given in
certificate and age determine through ossification. It was alleged on behalf of the
prosecution that the petitioner accused had completed the age of 18 years on the date of
occurrence and as such, he was liable to be tried jointly along with the other accused
persons. As per that admission register, the date of birth of the accused petitioner was
recorded as 13 December, 1978. According to the Headmaster's evidence, the said date was
recorded on the basis of declaration of the guardian of the petitioner at the time of his
admission in the admission form. The Headmaster did not, however, have any independent
knowledge regarding the age of the petitioner. On behalf of the prosecution the voters' list
of the relevant Assembly Constituency was placed before the Judge. According to the
entries in serial No.623 of part 137 of the said voters' list, the petitioner was aged 19 years
as on 1.1.93. If one goes by the admission register, the petitioner would have completed
just 13 years 9 months on 17.3.92. the date of commission of the offence, while if one goes
by the voters' list, the petitioner would have completed 18 years on the relevant date. No
other evidence was, however, adduced by either party during that inquiry.
7. The learned Judge rejecting the contention of the petitioner that he was a juvenile, preferred
the voters' list to the admission register for the purpose of coming to a finding regarding
the age of the petitioner as on the date of commission of the offence, because he was of the
view that the voters' list was a public document having been prepared by the proper
authority of the Government specially empowered to verify the age of a voter and
accordingly, by its order No. 11 dated 19.2.94.

4
Nazir Hossain Halder vs the State, (1998)2 CALLT 15 HC, 1998CriLJ 1720

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 Memorial on Behalf of Petitioner 15

8. This order was challenged on behalf of the petitioner accused in an earlier revision being
criminal revision No. 191 of 1994 before this court and His Lordship, N.A. Chowdhury, J
by order date 2.2.95 set aside that order and directed the trial court to send the petitioner to
a Government hospital for his ossification test and consider the medical report and medical
evidence and also to consider the other materials and determine the age of the petitioner.
According to the ossification test report, the petitioner was aged between 20 and 21 years
on the date of examination. If one goes by this report, the petitioner would have been aged
between 16 years 8 months and 17 years 8 months on 17.3.92, the date of commission of
the offence. The learned Judge relied on the ossification test report and come to a finding
that the accused petitioner was aged more than 16 years at the time of commission of the
offence and accordingly by order No. 26 dated 13.9.95, the learned Judge rejected the
prayer of the accused petitioner to be dealt with under the Juvenile Justice Act.
9. In case Parag Bhati (Juvenile) Versus State of Uttar Pradesh and Anr. 5, the father of the
appellant-accused filed an application before the Juvenile Justice Board stating that the date
of birth of the appellant-accused is 13.09.1995. The application on behalf of the appellant-
accused for proving his juvenility was supported with various school certificates issued by
the competent authorities from time to time. Honourable court in this case observed that6:

26) It is no doubt true that if there is a clear and unambiguous case in favour of the
juvenile accused that he was a minor below the age of 18 years on the date of the
incident and the documentary evidence at least prima facie proves the same, he would
be entitled to the special protection under the JJ Act. But when an accused commits a
grave and heinous offence and thereafter attempts to take statutory shelter under the
guise of being a minor, a casual or cavalier approach while recording as to whether an
accused is a juvenile or not cannot be permitted as the courts are enjoined upon to
perform their duties with the object of protecting the confidence of common man in the
institution entrusted with the administration of justice.

27) The benefit of the principle of benevolent legislation attached to the JJ Act would
thus apply to only such cases wherein the accused is held to be a juvenile on the basis
of at least prima facie evidence regarding his minority as the benefit of the possibilities
of two views in regard to the age of the alleged accused who is involved in grave and
serious offence which he committed and gave effect to it in a well-planned manner

5
Parag Bhati vs. State of Uttar Pradesh and Anr. CRIMINAL APPEAL NO. 486 OF 2016
6
Parag Bhati vs. State of Uttar Pradesh and Anr. (supra)

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 Memorial on Behalf of Petitioner 16

reflecting his maturity of mind rather than innocence indicating that his plea of
juvenility is more in the nature of a shield to dodge or dupe the arms of law, cannot be
allowed to come to his rescue.

10. The Juvenile Justice Board, after considering the evidence on record came to the conclusion
that the date of birth, as recorded in various School Certificates, submitted by the father of
the appellant-accused on his behalf, is doubtful and the juvenile was referred to the Medical
Board for determination of age.
11. Keeping in view the above given arguments and cases given in support of arguments we
want to say that as Ossification give the scientific prove of the age so it should be preferred
over matriculation. Medical science is so much developed that reliability can be made on
them. Here juvenile accused is involved in grave and serious offence which he committed
and gave effect to it in a well-planned manner reflecting his maturity of mind rather than
innocence indicating that his plea of juvenility is more in the nature of a shield to justice,
and cannot be allowed to come to his rescue.

1.3 Whether on interpretation of law, the juvenile will be liable to be tried under the
penal law of the land in regular Criminal Court along with other accused?
12. On the basis of the interpretation of laws the juvenile should be sent for trail before the
regular court. Though the Juvenile Justice Act gives certain kinds of protection to juveniles
and their matters are looked after by the Juvenile Justice Board. But looking into the
grievousness of the offence committed by the juvenile and after going through section 28
to be read with Section 28 of the Juvenile Justice (Care and Protection of Children) Act,
2000 its seems that Juvenile Justice Act also provide that some liberties can be taken to
send the juvenile cases to normal courts as per the grievousness of the offence of the cases.
13. The issue of serious/violent juvenile crime is a very complex one, warranting a judicious
approach to be adopted in order to effectively address the competing interests of these
juveniles, the victims (especially women and girls), and that of public safety7. The Delhi
gang rape case8 of 16 December 2012 has triggered a nationwide debate on a number of

7
The Juvenile Justice System in India and Children who commit serious offences – Reflections on the Way
Forward, Arlene Manoharan and Swagata Raha, Centre for Child and the Law (CCL), National Law School of
India University (NLSIU), Bangalore. This paper draws from contributions made by Geeta Sajjanshetty, Kalpana
Purushothaman, Shruthi Revankar and Anuroopa Giliyal, members of the Juvenile Justice Help Desk Team and
the official Position Paper of CCL NLSIU submitted to the Justice J. S. Verma Committee on 14th January 2013,
a copy of which is available at http://www.nls.ac.in/ccl/cclpositionpaper.pdf. Last seen on 18/01/2017
8
Subramanian Swamy and Ors.vs. Raju Anr., MANU/SC/0248/2014; AIR2014SC1649; (2014)8SCC390.

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 Memorial on Behalf of Petitioner 17

issues, one of them being the quantum of punishment for juveniles involved in heinous
crimes. The Juvenile Justice (Care and Protection of Children) Act, 2000 (JJ Act) prescribes
a maximum period of three years detention in a Special Home (SH), which is
disproportionate to the impact of such a crime on the victim and society. The juvenile
justice system does not reflect an understanding of the plight or the rights of victims of
juvenile crime. Restorative Justice programmes that enable victim – offender reconciliation
is increasingly gaining ground around the world (even in cases of juveniles who commit
serious/violent crime), attempting to balance competency development, accountability and
public safety goals in an effort to restore victims, communities and offenders, and restore
broken relationships9. There are little or no services or systems in place to ensure that the
needs and rights of victims of juvenile offences are respected and realized. Victims and
their families who have had to navigate through the system without any legal, psycho-
social, or financial assistance or support end up disillusioned and embittered by the process
as well as the outcome of JJB proceedings. This contributes to a negative perception of the
juvenile justice system. Increasing the effectiveness of reformation and rehabilitation of
such juveniles needs to be prioritized in order to build accountability and faith in the
system, and prevent reactionary legislative measures.10 The most urgent and critical area of
reform therefore, is not only of the law, but also of the way it is being implemented. In this
light, it must be examined whether subjecting children who commit serious offences to the
adult criminal justice system would be an appropriate response and whether such juveniles
should be sentenced to death or life imprisonment.
14. In Okhla Case two brothers were alleged for the murder of 5 family members of their
families. In this case Hon’ble judges of United States of America decided that since the
nature of the crime committed by brothers were of serious in nature and there is no point
of understanding that can state that the crime committed by brothers was out of the
understanding of the offenders as there was multiple stabbed wounds on the dead bodies.
So, in this cases trail and punishment awarded to the juvenile was as of the adults.
15. In another case of California, an 8 year old girl was sexually assaulted and murdered by a
teen of 15 years. After the assault and murder the dead body of the girl was disposed in the
dustbin. In this case Hon’ble court decided that the plea of juvenility cannot be taken by

9
Rule 17 (9) and (13), JJ Model Rules 2007.
10
The Juvenile Justice System in India and Children who commit serious offences – Reflections on the Way
Forward, (supra) copy of which is available at http://www.nls.ac.in/ccl/cclpositionpaper.pdf. Last seen on
18/01/2017

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 Memorial on Behalf of Petitioner 18

the offender as the offence committed by him and disposal of the dead body clearly shows
that the offender has full knowledge of the crime and its consequence. So, the juvenile in
this case has been trail and awarded punishment as of the adult.
16. In India, a case of rape was filled against a 17 year old boy. In this case JJB Presiding
Officer Arul Verma has rejected the plea of juvenile by the boy as the crime committed by
him was in planned manner and after committing rape juvenile threatened the victim against
reporting incident to police or disclosing to family because he had video of the sexual
relation that he will viral. By keeping all this incident in mind Juvenile Justice Board
decided to send juvenile for trail as an adult in the regular criminal court and punished as
an adult.
17. Section 83 of the India Penal Court also says that if a child of age group 7-12 years is able
to understand the nature and consequence of the crime committed them then they are
subjected to the normal trail. In Umesh Singh vs State of Bihar, in this case one of the
accused Arvind Singh was charged for murder under Sec. 302,149 and for causing hurt by
dangerous weapon under section 324 and under Sec. 27 of the Arms Act, 1959 for using
arms and ammunitions without license. He was 13 year old on the date of committing the
crime and he was trailed as an adult before the normal court and he was found guilty of the
offence which he was alleged of.
18. Further, with the advancement off the technology children of the tender ages are very much
exposed to pornography and other unsuitable materials. Under the impact of such materials
children of tender ages sometimes commit heinous crimes. The petitioner is not demanding
to generalize the law for all the juvenile accuse. According to the act there are various
branches to classify juvenile so there must be one more differentiation made between the
grievous offence and the petty offence and juvenile who are subjected to commit grievous
offence must be trailed as adult before the ordinary or regular courts.

1.3.1 Whether the juvenility will depend upon the nature of offence committed as in the
existing scenario most of the juveniles are engaged in horrendous and heinous crimes
like rape, murder and drug-peddling etc.?
19. The juvenility should depend upon the nature of offence committed as in the existing
scenario most of the juveniles are engaged in horrendous and heinous crimes like rape,
murder and drug-peddling in previous era, there was the information gap among the
juvenile and the outer world. They were not having the proper understanding of the acts
and their consequences. But with the passage of time there was advancement in the

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 Memorial on Behalf of Petitioner 19

technological world and juveniles are more attracted and exposed towards these
technological words for pornography and other unsuitable materials. Due to this exposures
the anxiety of juvenile increases and they commit heinous crimes for the fulfilment of these
anxieties. If we review the National Crime Bureau Report most of the juvenile who
commits crime come from poor and uneducated families who do not have sufficient needs
or facilities. They lack proper education, guidance and even food. Most of the crime are
committed to settle down hunger and other necessities. Sometimes age factor also matters
and single yardstick cannot facilitate in examining all sorts of crime and their nature.
20. By fragmenting the age of minors into three groups we can easily understand the nature of
crime and their response demographically. If we review the report of the National Crime
Bureau Report, 2013 they can see that juvenile of age group 7-12 years commits petty
offences, age group 12-16 years commits offences those more than that of the petty offences
but less than that of the heinous offences. But the age group of 16-18 years are
tremendously indulge in the crime which is considered to be heinous by India Penal Code
of the country.
21. The juvenile IPC crimes in 2011 have increased by 10.5% over 2010 as during 2010 22,740
IPC crimes by juveniles were registered which increased to 25,125 cases in 2011. This put
the judiciary and legislature in a state of quandary as to at what point of life of a person he
should be considered to be mentally upright to understand an act and its consequences.
With recent cases of deplorable acts by juveniles against humanity itself, special reference
to Nirbhaya case where a young woman was subjected to inhumane torture and pain by the
offenders one of who was a juvenile, which ultimately resulted into death of the victim, a
necessary dilemma arises that whether the age of juvenility shall be reduced from eighteen
years to sixteen years.
22. If we see , the National Crime Bureau Report, 2013 is necessary as only in the year 2013
a tremendous and unprecedented demand to decrease the age of juvenile.

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 Memorial on Behalf of Petitioner 20

Table 10.1211

11
NCRB report 2013, available at http://ncrb.gov.in last seen 11/01/17.

20
 Memorial on Behalf of Petitioner 21

Table 10.1412

12
NCRB report 2013, available at http://ncrb.gov.in last seen 11/01/17

21
 Memorial on Behalf of Petitioner 22

23. When we see the repost of NCRB, 2015 the graph of rage of crime under case of juvenile
in conflict with law is continuously increasing instead of decreasing. The laws are framed
by legislative so that the crime would decrease.

Table On. 10.113

But by seeing this report it appears that the Juvenile justice act to protect the offender whether
it should be used as to the proper care, protection and treatment by catering to their
development needs, and by adopting a child-friendly approach in the adjudication and
disposition of matters in the best interest of children and for their ultimate rehabilitation2”and
“re-socialization”14.

13
NCRB report 2015, available at http://ncrb.gov.in last seen 11/01/17
14
Section 9(3), JJ Act 2000

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 Memorial on Behalf of Petitioner 23

1.4 Whether the writ filled by the petitioner is valid or not?

24. The writ may be filed under section 226 of the constitution of India. When it is an error in
law, and it is apparent, certiorari will issue even though the tribunal has not transgressed its
jurisdiction in any way15. Where the tribunal stated on the face of the order the grounds on
which it made the order and in law these grounds were not such as to warrant the decision
to which the tribunal had come, certiorari would issue to quash the decision as held in P. T.
Services vs. S.I. Court case16.
25. It is pleaded in the case of Subramanian Swamy and Ors. vs. Raju17, that the ban on
jurisdiction of criminal courts by Section 7 of the Act is unconstitutional inasmuch as it
virtually ousts the criminal justice system from dealing with any offence committed by a
juvenile. It was argued by referring Mithu v. State of Punjab18 and Dadu v. State of
Maharashtra19, that parliament cannot make a law to oust the judicial function of the courts
or even judicial discretion in a matter which falls within the jurisdiction of the courts.
Further it was argued that what the Act contemplates in place of a regular criminal trial is
a non-adversarial inquiry against the juvenile where the prime focus is not on the crime
committed but on the reasons that had led the juvenile to such conduct.
26. The Juvenile Justice (Care and Protection of Children) Act, 2000 (JJ Act) prescribes a
maximum period of three years detention in a Special Home (SH), which many believe as
being disproportionate to the impact of such a crime on the victim and society. The
proceedings against the juvenile Raju held by the JJ Board are, therefore, null and void and
the said juvenile is liable to be tried by a competent criminal court in accordance with the
procedure prescribed. In this regard, it is also submitted that the concept of double jeopardy
Under Article 20(3) of the Constitution of India and Section 300 of Penal Code of India
will have no application inasmuch as the proceedings before the JJ Board did/does not
amount to a trial.

15
P. M. Bakshi, The Constitution of India, 194 (12 th ed. 2014)
16
P. T. Services vs. S.I. Court, Air 1963 3 SCR 650
17
Subramanian Swamy and Ors.vs. Raju Anr., MANU/SC/0248/2014; AIR2014SC1649; (2014)8SCC390.
18
Mithu v. State of Punjab MANU/SC/0065/1983: (1983) 2 SCC 277
19
Dadu v. State of Maharashtra MANU/SC/0637/2000: (2000) 8 SCC 437

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 Memorial on Behalf of Petitioner 24

PRAYER

WHEREFORE, in the lights of the facts used, issues raised, arguments advanced and
authorities cited, it is most humbly and respectfully prayed that this Hon'ble court may be
pleased to adjudge and declare that:

1. The Appeal be allowed.

2. The judgement of the Juvenile Justice Board be set aside.

The court may also be please to pass any other order, which this Hon'ble Court may deem fit
in the light of justice, equity and good Conscience.

All of which is most humbly prayed

Counsel for the Petitioner.

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