I begin with a quote,
79. “Before we close this matter, we would like to observe that the rising rate of juvenile delinquency in India is a matter of concern and requires immediate attention. There is a school of thought, existing in our country that firmly believes that howsoever heinous the crime may be, be it single rape, gang-rape, drug peddling or murder but if the accused is a juvenile, he should be dealt with keeping in mind only one thing i.e., the goal of reformation. The school of thought, we are taking about believes that the goal of reformation is ideal. The manner, in which brutal and heinous crimes have been committed over a period by the juveniles and still continue to be committed, makes us wonder whether the Act, 2015 has sub-served its object. We have started gathering an impression that the leniency with which the juveniles are dealt with in the name of goal of reformation is making them more and more emboldened in indulging in such heinous crimes. It is for the Government to consider whether its enactment of 2015 has proved to be effective, or something still needs to be done in the matter before it is too late in the day.”
Criminal appeal no. 1928 of 2022 (arising out of SLP. (Criminal) no. 11220 of 2019.
The aforesaid observation has been made by the Hon’ble Supreme Court, while disposing Criminal Appeal no.1928 of 2022, arising out of S.L.P. (Criminal) no. 11220 of 2019, vide the Hon’ble Apex Court’s order dated November 16, 2022, wherein and whereby the Hon’ble Court held,
“In the result, this appeal succeeds and is hereby allowed. The impugned order passed by the CJM, Kathua and the High Court is set aside. It is held that the respondent accused was not a juvenile at the time of commission of the offence and should be tried the way other co-accused were tried in accordance with the law. Law to take its own course.”
The Kathua rape case involved abduction, gang rape and murder of an eight-year-old Muslim girl by name ‘X’ by six Hindu men and the respondent in the case Shubam Sangra (claiming to be a juvenile). The incident took place in January 2018 at the Rasana village near Kathua in Jammu & Kashmir. The victim belonged to the nomadic Bakarwal community. She disappeared for a week before her body was recovered by the villagers a kilometre away from the village. In all eight individuals were arrested in connection with the ghastly crime which included the respondent Shubam Sangra. Since the respondent herein claimed to be a juvenile, his trial was separated. The other six co-accused were put to trial and vide the Judgment and Order dated 10.06.2019 passed by the trial court, six of the seven accused stood convicted, and one accused was acquitted. Three of those convicted were sentenced to life imprisonment and remaining three to five years rigorous imprisonment.
While going through the judgment I found no mention of Juvenile Justice (Care and Protection of Children) Act, 2015 herein after referred to as JJ Act, 2015 during the proceedings nor did I found any mention of Protection of Children from Sexual Offences Act,2012 herein after referred to as POCSO Act,2012. The gruesome incidence took place in the year 2018. I was surprised. I talked to my friend working in the field of Child Rights in Kashmir. Claiming anonymity, he confided to me and reported that on the date of incidence neither JJ Act,2015 nor the POCSO Act,2012 was implemented in the state of J & K. This was the apt reason as to why, neither the provisions related to Aggravated Penetrative Sexual Assault, as provided under Section 5 was mentioned in the chargesheet nor do the provision of section 15(1) of the JJ Act, 2015 was followed.
Keeping in view that stringent provisions of Section 15(1) of JJ Act,2015 related to child in conflict with law, aged 16 to 18 years, committing a heinous offence was not applicable on the date of incidence, and the POCSO Act,2012 was not implemented and hence the two laws were not evoked.
The scenario related to children in conflict with law has changed a lot after the implementation of Section 15 (1) of JJ Act,2015, which is more punitive than restorative.
The child in conflict with law in the Kathua case is exactly covered under Section 15 (1) read with sections 19 and 20 of JJ Act,2015 and Section 5/6 of POCSO Act. Keeping in view the relevant provisions of the JJ Act,2015 and POCSO Act, 2012 the child in conflict with law may be awarded a punishment to the extent of lifetime imprisonment but not for the whole of the remaining life. The punishment is as stringent as awarded to any adult accused.
The problem is that the Kathua Cas, in the given circumstances, cannot be a touch stone for the efficacy of the JJ Act,2015 and the POCSO Act, 2012.
Such observations, ref. para 79 of the judgment of the Hon’ble Apex Court may be taken as dictate by the courts below including the JJBs and will create further complications by ‘question marking’ the effectiveness of a progressive law, such as JJ Act,2015.