The case of the luxury car, allegedly driven by a 17-year-old boy, crashing into a motorcycle and killing two persons as well as attempts made to circumvent police procedure has led to a national outcry. It has also revived the issue of the treatment of juvenile offenders
By Dr Swati Jindal Garg
According to the Pune Police, the juvenile was reportedly intoxicated at the time of the incident. What has shocked the nation though is the fact that the minor boy was initially granted bail in less than 15 hours of the incident by the Juvenile Justice Board (JJB) which asked him to work with the Yerwada traffic police for 15 days and write an essay on the incident!
The incident first came to light when a friend of the deceased filed a First Information Report (FIR). The victims, both 24-year-old software engineers from Madhya Pradesh, working in Pune were identified as Aneesh Awadhiya and Ashwini Koshta.
It was Awadhiya’s friend, Akib Mulla, who lodged the FIR regarding the Porsche accident at the Yerwada police station. On investigation, it was revealed that the Porsche was travelling at an estimated speed of 160 km/hr when it crashed into the victims’ motorcycle.
What is shocking the conscience of the nation is the extremely lenient manner in which the bail was granted to the minor who claims that his father knew that he was consuming liquor. The father of the accused has also been detained by the Pune Police and sent to police remand for allowing his minor son to consume alcohol and drive the Porsche while intoxicated. While concerns are being raised over the delay in the blood alcohol test of the minor, the police maintain that they are trying to find the reason behind the delay. The minor was reportedly taken to Sassoon General Hospital around 9 am, the sample was collected around 11 am, i.e. a delay of about two crucial hours and also many hours after the fatal accident took place. Action has been taken against police officials who were initially involved in the investigation, but only after the case made national headlines.
Reiterating that they are not succumbing to any pressure, Pune Police Commissioner Amitesh Kumar said: “Absolutely not. We are under no pressure. There is no question of it. In fact, we have applied a stringent section… Section 304 of the IPC relating to culpable homicide not amounting to murder.” The police has also filed an application to try the minor as an adult. The JJB has now remanded the minor to an observation home after there was huge hue and cry over the swift grant of bail to the accused. The bench, however, has stopped short of declaring its verdict on treating the minor as an adult in a crime that has led to widespread uproar across the country, saying that it will decide the same “at a later stage”.
“The CCL (child in conflict with the Law) has been directed to be sent to the observation home where his mental condition will be monitored by a psychiatrist,” the accused’s lawyer said. “According to the procedure, JJB normally monitors the boy’s behaviour pattern including his mental state, de-addiction efforts for a period between 60 and 90 days after which the JJB takes a call in such cases,” he added.
The case, however, is getting “curiouser and curiouser” as in a recent dramatic turn of events, the 17-year-old accused has reportedly claimed that his family driver was behind the wheel during the accident. The minor’s two friends, who were with him at the time, have also reportedly supported his claims. It has also emerged that the teenager’s grandfather, who had started the family’s construction business, was earlier charge sheeted by the CBI for allegedly hiring a mercenary from Chhota Rajan’s gang to kill a Shiv Sena corporator, Ajay Bhosale, in 2009. The teen’s grandfather has also been arrested after the family’s driver alleged that he was confined at the family’s home, threatened and asked to take the blame for the accident.
The other arrests in the case include staff of the two bars the teen visited that night and the two doctors and a peon who allegedly tampered with the teen’s blood samples. These arrests and allegations of manipulation of blood samples further strengthen the charge that the family blatantly used money and influence to protect the teen.
The law on how to deal with juveniles in India has undergone multiple changes over the years. Traditionally, a person below the age of 18 is tried as a juvenile under the Juvenile Justice (Care and Protection of Children) Act, 2015. However, under certain circumstances, where the severity of the punishment as prescribed under the Act fails to justify the acts of the juvenile offender, the Act provides that the juvenile can be tried as an adult.
Even though the primary motive of the JJ Act is to ensure the general care and protection of children by reforming them and reintegrating them into the society, there was a huge hue and cry post the Nirbhaya case for more stringent punishment with respect to juveniles involved in serious crimes. Bowing to the pressure, the legislature amended the JJ Act to adequately address the crimes committed by the juvenile offenders wherein it was thought that a case pertaining to juvenile offenders cannot merely be decided on the basis of the age of the juvenile, but it should also take into consideration the criminal offense committed by the juvenile. The amendment introduced the concept of heinous crimes and the procedure for trying juveniles caught doing the heinous crimes as an adult.
The offenders under the JJ Act are referred to remand homes, and upon their release, their criminal records are deleted in order to ensure their proper rehabilitation into society. It was observed that in some cases, it was difficult to conceive that the juvenile offender was not aware of the consequences of his action for offences like murder, rape, etc. After the 2012 Nirbhaya case, public outcry to punish the juvenile involved led to a change in the JJ Act as it was felt that the JJ Act adopted a less stringent approach for people below the age of 18, even though the crime committed was severe and punishable under the Indian Penal Code (IPC). To address this lacuna, the Act introduced the concept of three categories of offences:
Petty offences which include the offences for which the maximum punishment under the IPC or any other law for the time being in force is imprisonment up to three years.
Serious offences which include the offences for which the punishment under the IPC or any other law for the time being in force is imprisonment between three and seven years.
Heinous offences which include the offences for which the minimum punishment under the IPC or any other law for the time being in force is imprisonment for seven years or more.
After the amendment, the JJ Act now states that a juvenile offender between the age of 16 and 18 can be tried as an adult for committing a heinous offence or for any of the offences under any other act in force, wherein the minimum punishment is seven years or more. Further, the juvenile shall be tried as an adult only after a board (with the assistance of psychologists or psycho-social workers or other experts) has assessed the juvenile offender on the following:
The capability of the juvenile to commit such a murder (mens rea and physical capacity).
His ability to comprehend the consequences of the offence committed.
The circumstances in which the offence was committed.
The assessment has to be completed within a period of three months from the date of the child being produced before the JJB. While there is no specific data available on how many children between 16 and 18 have been tried as adults in India, the National Crime Records Bureau reports show that a large number of juveniles apprehended for crimes are between 16 and 18 years old. The NCRB report of 2020 shows that 76.2% of the juveniles in conflict with the law (26,954 out of 35,352) arrested during 2020 were between the ages of 16 and 18. In 2019, the percentage was 74%.
There have, however, been various cases where the courts have come down heavily on JJBs for their assessment of a juvenile as an adult. The Rajasthan High Court in a 2019 verdict in the case of a 17-year-old girl, who killed her husband after repeated physical and sexual abuse, rapped the JJB for the “absolutely mechanical and laconic manner” of passing order allowing the girl to be tried as an adult. “No account had been taken of the circumstances in which the child was driven to commit the offence,” noted the Court.
In another case from Jhabua, Madhya Pradesh, 16-and-17-year-olds were tried as adults and sentenced to life imprisonment without reference to the fact that they were drug addicts and the murder was committed while under the influence of drugs. The High Court reversed the verdict and noted that social and medical factors were “not taken into account”. The Delhi High Court had also, in a 2016 verdict, directed the JJB to re-examine a case where it was found that the assessment report of a 17-year-old was based on “inappropriate tests, which were actually meant for children between the age group of 5-15 years.”
One of the biggest problems with the system is the lack of training of the JJB members and the experts. The intent of the law was to get a wide range of experts, but there are very few actual experts working with the juvenile justice system in India. Instead of applying judicial mind to the report, expert reports are being accepted at face value which is the root of the problem.
The proactive steps being taken by the courts will hopefully pave the way to a better and more guarded system. While the intent behind the amendment to the JJ Act was correct, its application needs a lot of work and the entire system will need to be pulled up from the grassroots level in order to apply the amended law in its true letter and spirit.
Meanwhile, what happens in the Porsche case remains to be seen.
—The writer is an Advocate-on-Record practicing in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi