Inclusion Of 4th Category Offences Into Serious Offence
Justice require that we work to restore those who have been injured
On 15th march Lok Sabha introduced the Juvenile Justice Amendment Bill. The Bill was passed by the Lok Sabha & Rajya Sabha on 24th March 2021 & 28th Jul 2021 respectively by Smriti Zubin Irani.
The bill added the fourth category of offences into the serious offences to keep the Child in conflict with law with High degree & Low degree crimes separately, to protect them from getting into Adult delinquency & differentiate the degree of offence by introducing categories.
After the amendment, the punishment under the serious offence were termed as:
Who is a Juvenile under the law?
From deterrence to reformation theory, we've come along in the world of Juvenile Justice. As the law now is more curative, keeping the balance of interest for the victims as well.
In the year, 1960 the first legislation was enacted The Children's Act, which created two different authorities for the Child in conflict with law & Child in need of Care & Protection. In the Juvenile Justice Act 1986 amendment, the term child was substituted by Juvenile in The Children's Act.
Later, by the end of 20th century, the United Nations Convention, prescribed standards for all the parties for the Rights of the Children for the Administration & for the best interest of the child. On 11th December, 1992, India signed the UNC for Child rights.
As the crimes committed by the children grew below the age of 18, the amendment of the legislation took place by the end of the 20th century to ensure proper care & protection of a Juvenile in conflict with law and to mandate UNC regulations.
The Juvenile Justice act 2000 Amendment defined, a Juvenile in Conflict with law, under the age of 18 years during the commencement of the crime.
How is the age of the Juvenile determined?
According to the Juvenile Justice Act 2000, the two ways to determine age of the accused are documentary evidence and medical evidence.
In the case, Bhoop Ram v. State of UP [1]:
In case of conflict between documentary evidence and medical report, the documentary evidence will be considered to be correct.'
Adding up to the fact, documentary evidence i.e. births certificates, examination certificates have been found disingenuous & not justifiable enough to prove the validity of the age. Not only that in few cases, the professional witness is prone to side with a party that engages with his/her services. Hence, the medical evidence has not been 100% conclusive evidence.
Then, In the case, Babloo Passi and Vs. State of Jharkhand and anr[2]:
No fixed norm had been laid down by the Act for the age determination of a person and the plea of the juvenile must be judged strictly on its own merit.
With time, the circumstantial situations must be taken with the wake of mens rea for any commission of act for determination.
As held in the case, Pratap Singh vs. State of Jharkhand[3]:
The reckoning date for the determination of the age of the juvenile is the date of an offence and not the date when he is produced before the authority or in the Court.
Further it has been noted, documentary evidence has always prevailed over the medical evidences but due to the inferior quality of the evidence, the third option has been availed to the board, to determine based on the appearance of the person as nearly as may be & take inquiry with Section 14 or Section 36.
''In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.'' as held in Vijay Singh Vs. State of Delhi.[4]
Lastly, considering the heinous offences, circumstantial situations must be taken with the wake of mens rea for any commission of act. Lowering the age of 18 would counter the contractual age for agreement & voting age.
What are the categories of offences?
According to IPC, Section 2(45) defines petty offences as those for which the maximum punishment provided under any law including the IPC, is imprisonment up to 3 years, like robbery, theft, trespass etc.
According to IPC, Section 2(33) defines heinous offences as those for which the minimum punishment under the Indian Penal Code or any other law for the time being in force is imprisonment for seven years or more for offences like rape, murder, dacoity etc.
According to IPC, Section 2(54) defines serious offences as those for which punishment under the IPC, or any other law in force, is imprisonment between three to seven years.
In the year 2012, Mukesh & Anr vs. State for Nct of Delhi & Ors [5], the accused was below the age of eighteen years, brutally gang raped the victim, and the degree of crime was so outrageous that committees were set up to discuss.
Due to the fact, the accused being underage the deterrence effect started dissolving slowly. The high stain of crime commission, headed to the amendment, which subsided the age of heinous offences to 16-18years & would be treated under the adult laws on discretion of the Juvenile Justice board on the basis of preliminary assessment.
When a juvenile, falls under the margin of 18years, he/she should be availed the benefits of the provisions under the act. But the juvenility should be determined by the degree of crime. An offence of Section 375[6] can't be waived off by categorizing him/her as a juvenile.
Hence, the categories were introduced.
Inclusion of 4th category offences into the serious offence category?
The 4th category offences under IPC are the offences which are punishable with a maximum punishment of imprisonment for life or up to 10 years.
Drawing to the serious offences, under IPC are the offences which are those for which punishment under the IPC, or any other law in force, is imprisonment between three to seven years.
The Supreme Court of India, held in the Shilpa Mittal vs. NCT of Delhi[7] case that:
4th category of offences which has the imprisonment of more than 7 years but no minimum sentence of less than 7 years will be treated as serious offence'
It is the degree of crime which determines the gravity of the punishment.
It is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word 'likely' in Clause (b) of Section 299 conveys the sense of probable as distinguished from a mere possibility.
The three degrees of culpable homicide, the first, crucial one as murder the second, as culpable homicide and third as culpable homicide not amounting to murder which is the lowest form of the three, in regard with the punishment, which varies with the degree of crime.
Seriousness of the crime is used to prescribe punishment. As the uniformity of the punishment, the objective of the punishment varies the question always arises whether to there should be a balance of justice for the victim & the accused or whether the age consideration of a juvenile should always prevail over injustice towards the victim?
The gravity of the punishment should reflect the gravity of the offence. With consideration of individual justice, circumstances of the juvenile & the needs of the victim.
Disproportionate consideration by less punishment would lead to questioning of efficacy & effectiveness of law.
In the case, Essa and Ors. Vs. The State of Maharashtra, through STF, CBI Mumbai and Ors.[8]
Aims of juvenile justice provide that the juvenile Justice system shall emphasize the well-being of the juvenile and shall ensure that any reaction to juvenile offenders shall always be in proportion to the circumstances of both the offenders and the offence.
Constitutional Validity of the inclusion of 4th category of offence.
Article 14, guarantees to all person equality before the law and equal protection of the laws.
A minor aging between the ages of 16-18, who commits serious offence will dealt differently from others and are given special treatment as subjected to the CrPC.
As the Section 27 of CrPC states, any offence committed by a person who is below the age of 16 whose punishment does not include death or imprisonment will be dealt with the law which provides treatment, training, imparting good social values and rehabilitation of convicted minors.
Further, in the case, Subramanian Swamy and Ors. Vs. Raju Thr. Member Juvenile Justice Board and Ors. 2014[9]
Sections 1(4), 2(k), 2(1) and 7 must be read to mean that juveniles (children below the age of 18) who are intellectually, emotionally and mentally mature enough to understand the implications of their acts and who have committed serious crimes do not come under the purview of the Act Such juveniles are liable to be dealt with under the penal law of the country and by the regular hierarchy of courts under the criminal justice system.
Having a blanket categorisation of all of offences committed by the juveniles without taking the intellectual maturity of the juvenile & seriousness of the crime would breach Article 14.
As the legislative intend of this inclusion was to not to deal the child in conflict with law like adults but to reform & restore ensuring their rehabilitation in society.
Evolution of the enactment
In the Juvenile Justice Act 1986, there was no provision of categorisation for the juveniles under the same age group under the same offence.
Further, in the Juvenile Justice Act 2000 there was no amendment, on the categorisation of the age & offence on the gravity of crime, capital punishments were still given to the juveniles as the adults in the Justice System.
By 2015 Amendment act, after setting up a lot of committees, categories of offences were introduced such as petty, serious & heinous crimes. The juveniles ageing 16-18 years would be treated as adults for the offences like rape, murder.
With this further, 2021 Amendment act was introduced, included to 4th category offence into serious offence in the light of treating the juveniles differently from adult crime system and restore them.
End-Notes:
On 15th march Lok Sabha introduced the Juvenile Justice Amendment Bill. The Bill was passed by the Lok Sabha & Rajya Sabha on 24th March 2021 & 28th Jul 2021 respectively by Smriti Zubin Irani.
The bill added the fourth category of offences into the serious offences to keep the Child in conflict with law with High degree & Low degree crimes separately, to protect them from getting into Adult delinquency & differentiate the degree of offence by introducing categories.
After the amendment, the punishment under the serious offence were termed as:
- minimum sentence of 3-7 years and
- maximum sentence of 7 years but no minimum sentence of 7 years
Who is a Juvenile under the law?
From deterrence to reformation theory, we've come along in the world of Juvenile Justice. As the law now is more curative, keeping the balance of interest for the victims as well.
In the year, 1960 the first legislation was enacted The Children's Act, which created two different authorities for the Child in conflict with law & Child in need of Care & Protection. In the Juvenile Justice Act 1986 amendment, the term child was substituted by Juvenile in The Children's Act.
Later, by the end of 20th century, the United Nations Convention, prescribed standards for all the parties for the Rights of the Children for the Administration & for the best interest of the child. On 11th December, 1992, India signed the UNC for Child rights.
As the crimes committed by the children grew below the age of 18, the amendment of the legislation took place by the end of the 20th century to ensure proper care & protection of a Juvenile in conflict with law and to mandate UNC regulations.
The Juvenile Justice act 2000 Amendment defined, a Juvenile in Conflict with law, under the age of 18 years during the commencement of the crime.
How is the age of the Juvenile determined?
According to the Juvenile Justice Act 2000, the two ways to determine age of the accused are documentary evidence and medical evidence.
In the case, Bhoop Ram v. State of UP [1]:
In case of conflict between documentary evidence and medical report, the documentary evidence will be considered to be correct.'
Adding up to the fact, documentary evidence i.e. births certificates, examination certificates have been found disingenuous & not justifiable enough to prove the validity of the age. Not only that in few cases, the professional witness is prone to side with a party that engages with his/her services. Hence, the medical evidence has not been 100% conclusive evidence.
Then, In the case, Babloo Passi and Vs. State of Jharkhand and anr[2]:
No fixed norm had been laid down by the Act for the age determination of a person and the plea of the juvenile must be judged strictly on its own merit.
With time, the circumstantial situations must be taken with the wake of mens rea for any commission of act for determination.
As held in the case, Pratap Singh vs. State of Jharkhand[3]:
The reckoning date for the determination of the age of the juvenile is the date of an offence and not the date when he is produced before the authority or in the Court.
Further it has been noted, documentary evidence has always prevailed over the medical evidences but due to the inferior quality of the evidence, the third option has been availed to the board, to determine based on the appearance of the person as nearly as may be & take inquiry with Section 14 or Section 36.
''In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.'' as held in Vijay Singh Vs. State of Delhi.[4]
Lastly, considering the heinous offences, circumstantial situations must be taken with the wake of mens rea for any commission of act. Lowering the age of 18 would counter the contractual age for agreement & voting age.
What are the categories of offences?
According to IPC, Section 2(45) defines petty offences as those for which the maximum punishment provided under any law including the IPC, is imprisonment up to 3 years, like robbery, theft, trespass etc.
According to IPC, Section 2(33) defines heinous offences as those for which the minimum punishment under the Indian Penal Code or any other law for the time being in force is imprisonment for seven years or more for offences like rape, murder, dacoity etc.
According to IPC, Section 2(54) defines serious offences as those for which punishment under the IPC, or any other law in force, is imprisonment between three to seven years.
In the year 2012, Mukesh & Anr vs. State for Nct of Delhi & Ors [5], the accused was below the age of eighteen years, brutally gang raped the victim, and the degree of crime was so outrageous that committees were set up to discuss.
Due to the fact, the accused being underage the deterrence effect started dissolving slowly. The high stain of crime commission, headed to the amendment, which subsided the age of heinous offences to 16-18years & would be treated under the adult laws on discretion of the Juvenile Justice board on the basis of preliminary assessment.
When a juvenile, falls under the margin of 18years, he/she should be availed the benefits of the provisions under the act. But the juvenility should be determined by the degree of crime. An offence of Section 375[6] can't be waived off by categorizing him/her as a juvenile.
Hence, the categories were introduced.
Inclusion of 4th category offences into the serious offence category?
The 4th category offences under IPC are the offences which are punishable with a maximum punishment of imprisonment for life or up to 10 years.
Drawing to the serious offences, under IPC are the offences which are those for which punishment under the IPC, or any other law in force, is imprisonment between three to seven years.
The Supreme Court of India, held in the Shilpa Mittal vs. NCT of Delhi[7] case that:
4th category of offences which has the imprisonment of more than 7 years but no minimum sentence of less than 7 years will be treated as serious offence'
It is the degree of crime which determines the gravity of the punishment.
It is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word 'likely' in Clause (b) of Section 299 conveys the sense of probable as distinguished from a mere possibility.
The three degrees of culpable homicide, the first, crucial one as murder the second, as culpable homicide and third as culpable homicide not amounting to murder which is the lowest form of the three, in regard with the punishment, which varies with the degree of crime.
Seriousness of the crime is used to prescribe punishment. As the uniformity of the punishment, the objective of the punishment varies the question always arises whether to there should be a balance of justice for the victim & the accused or whether the age consideration of a juvenile should always prevail over injustice towards the victim?
The gravity of the punishment should reflect the gravity of the offence. With consideration of individual justice, circumstances of the juvenile & the needs of the victim.
Disproportionate consideration by less punishment would lead to questioning of efficacy & effectiveness of law.
In the case, Essa and Ors. Vs. The State of Maharashtra, through STF, CBI Mumbai and Ors.[8]
Aims of juvenile justice provide that the juvenile Justice system shall emphasize the well-being of the juvenile and shall ensure that any reaction to juvenile offenders shall always be in proportion to the circumstances of both the offenders and the offence.
Constitutional Validity of the inclusion of 4th category of offence.
Article 14, guarantees to all person equality before the law and equal protection of the laws.
A minor aging between the ages of 16-18, who commits serious offence will dealt differently from others and are given special treatment as subjected to the CrPC.
As the Section 27 of CrPC states, any offence committed by a person who is below the age of 16 whose punishment does not include death or imprisonment will be dealt with the law which provides treatment, training, imparting good social values and rehabilitation of convicted minors.
Further, in the case, Subramanian Swamy and Ors. Vs. Raju Thr. Member Juvenile Justice Board and Ors. 2014[9]
Sections 1(4), 2(k), 2(1) and 7 must be read to mean that juveniles (children below the age of 18) who are intellectually, emotionally and mentally mature enough to understand the implications of their acts and who have committed serious crimes do not come under the purview of the Act Such juveniles are liable to be dealt with under the penal law of the country and by the regular hierarchy of courts under the criminal justice system.
Having a blanket categorisation of all of offences committed by the juveniles without taking the intellectual maturity of the juvenile & seriousness of the crime would breach Article 14.
As the legislative intend of this inclusion was to not to deal the child in conflict with law like adults but to reform & restore ensuring their rehabilitation in society.
Evolution of the enactment
In the Juvenile Justice Act 1986, there was no provision of categorisation for the juveniles under the same age group under the same offence.
Further, in the Juvenile Justice Act 2000 there was no amendment, on the categorisation of the age & offence on the gravity of crime, capital punishments were still given to the juveniles as the adults in the Justice System.
By 2015 Amendment act, after setting up a lot of committees, categories of offences were introduced such as petty, serious & heinous crimes. The juveniles ageing 16-18 years would be treated as adults for the offences like rape, murder.
With this further, 2021 Amendment act was introduced, included to 4th category offence into serious offence in the light of treating the juveniles differently from adult crime system and restore them.
End-Notes:
- Bhoop Ram v. State of UP MANU / SC / 0070 / 1989
- Babloo Passi and Vs. State of Jharkhand and anr, MANU / SC / 0502 / 1980
- Pratap Singh Vs. State of Jharkhand, MANU / SC / 0075 / 2005
- Vijay Singh Vs. State Of Delhi, MANU/SC/0703/2012
- Mukesh & Anr vs. State for Nct of Delhi & Ors, MANU/SC/0575/2017
- Under the IPC, Rape.-A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman
- Shilpa Mittal vs. NCT of Delhi, MANU/SC/0020/2020
- Essa and Ors. vs. The State of Maharashtra, through STF, CBI Mumbai and Ors, MANU/SC/0265/2013
- Subramanian Swamy and Ors. Vs. Raju Thr. Member Juvenile Justice Board and Ors. 2014 8 SCC 390
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