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BEFORE THE HON’BLE SUPREME COURT OF SINDHU
ORIGINAL JURISDICTION
(UNDER ARTICLE 32 OF THE CONSTITUTION OF SINDHU)
WRIT PETITION NO. ______/
IN THE MATTER OF:
BETWEEN :
1. HERO AND ORS ….PETITIONER
AND :
1. UNION OF SINDHU …..RESPONDENT
“MEMORIAL ON BEHALF OF THE PETITIONER ”
TC
LIST OF ABBREVIATIONS
SL.
NO
ABBREVIATION FULL FORM
1 AIR All India Reporter 2 & And 3 ART Article 4 CPC Civil Procedure Code 5 Cr.P.C Criminal Procedure Code 6 Hon’ble Honourable 7 In Re In Reference 8 IPC Indian Penal COde 9 LJ Law Journal 10 Ltd. Limited 11 CCL Children in Conflict with the Law 12 No. Number 13 Para Paragraph 14 Pvt. Private 15 QB Queen’s Bench 16 SC Supreme Court 17 SCC Supreme Court Cases 18 SCJ Supreme Court Journal 19 SCR. Supreme Court Reporter 20 Sec. Section 21 SLP Special Leave Petition 22 Supp Supplement 23 u/s Under Section 24 JJP Juvenile Justice Panel 25 UKSC United Kingdom Supreme Court 26 v Versus 27 Vol. Volume 28 WP Writ Petition
STATEMENT OF FACTS
Ratan Lal & Dhiraj Lal, the Code of Criminal Procedure (Lexis Nexis, 22nd Edition,
S.N. Mishra, the Code of Criminal Procedure, 1973 (Central Law Publications, 20th Edition, 2016) Surya Narayan Mishra, Shrinvas Gupta (ed.), (Central Law Agency, Allahabad, 20th Edi, 2016). DATABASE REFERRED: - http://www.judis.nic.in http://www.lexisnexis.com http://www.manupatra.com https://journalsofindia.com JOURNALS REFERRED: - All India Reporters. Indian Law Reporter. OTHER AUTHORITIES: -
STATEMENT OF JURISDICTION
ISSUE 3
ISSUE 2
SUMMARY OF ARGUMENTS
ISSUE 4
1. WHETHER THE PRESENT SLP AND THE WRIT PETITION IS
MAINTAINABLE BEFORE THIS COURT?
2. CAN THE FIR REGISTERED AGAINST THE ACCUSED BE QUASHED IN
AFORESAID FACTS AND CIRCUMSTANCES OF THE CASE?
3. WHETHER THE ‘PRELIMINARY ASSESSMENT’ CONDUCTED UNDER
SECTION 15 OF THE JUVENILE JUSTICE ACT, 2015 IS VIOLATIVE OF
ARTICLE 20 (3) OF THE CONSTITUTION?
4. WHETHER THE ‘PRELIMINARY ASSESSMENT’ CONDUCTED UNDER
SECTION 15 OF THE JUVENILE JUSTICE ACT, 2015 IS VIOLATIVE OF
SECTION 3 OF THE JUVENILE JUSTICE ACT, 2015?
ISSUE 3
ISSUE 2
ISSUE 1
ISSUE 4
1. WHETHER THE PRESENT SLP AND THE WRIT PETITION IS
MAINTAINABLE BEFORE THIS COURT?
It is submitted to this Hon’ble Court that the present SLP^1 and Writ Petition^2 are maintainable before this Court on the following grounds Circumstances to exercise powers under Article 136 Violation of the Fundamental rights guaranteed in Sindhu.
2. WHETHER THE ‘PRELIMINARY ASSESSMENT’ CONDUCTED UNDER SECTION 15 OF THE JUVENILE JUSTICE ACT, 2015 IS VIOLATIVE OF ARTICLE 20 (3) OF THE CONSTITUTION? ‘ Preliminary Assessment ’ conducted under Section 15 of the Juvenile Justice Act, 2015 is violative of Article 20 (3) of the Constitution and the petitioner would like to plead the arguments as follows: Jurisprudential Background of Punishment and Presumption of Guilt Presumption of Bias Non Consideration of Article 20(3) 3. WHETHER THE ‘PRELIMINARY ASSESSMENT’ CONDUCTED UNDER SECTION 15 OF THE JUVENILE JUSTICE ACT, 2015 IS VIOLATIVE OF It is submitted to the Hon’ble Bench that the the ‘ Preliminary Assessment ’ conducted under Section 15 of the Juvenile Justice Act, 2015 is violative of Section 3 of the Juvenile Justice Act, 2015, on grounds of consideration that: Can and Should a Juvenile be tried as an Adult? Is there a dichotomy between the Rule and the Standard; and has it been addressed? (^1) Moot Proposition – para 12 and 13. (^2) Moot Proposition – para 14.
ISSUE 1
ARGUMENTS ADVANCED
1. WHETHER THE PRESENT SLP AND THE WRIT PETITION IS
MAINTAINABLE BEFORE THIS COURT?
It is submitted to this Hon’ble Court that the present SLP^3 and Writ Petition^4 are maintainable before this Court on the following grounds Circumstances to exercise powers under Article 136 Violation of the Fundamental rights guaranteed in Sindhu. C I R C U M S T A N C E S T O E X E R C I S E P O W E R S U N D E R A R T I C L E 1 3 6 In the instant case, the circumstances to exercise powers under Article 136 are evidently available and the set of events for such exercise of powers are as follows^5 : The powers of this Court under Article 136^6 of the Constitution are very wide but in criminal appeals this Court does not interfere with the concurrent findings of fact save in exceptional circumstances. It is open to this Court to interfere with the findings of fact given by the High Court, if the High Court has acted perversely or otherwise improperly. It is open to this Court to invoke the power under Article 136 only in very exceptional circumstances as and when a question of law of general public importance arises or a decision shocks the conscience of the Court. When the evidence adduced by the prosecution fell short of the test of reliability and acceptability and as such it is highly unsafe to act upon it. Where the appreciation of evidence and finding is vitiated by any error of law of procedure or found contrary to the principles of natural justice, errors of record and misreading of the evidence, or where the conclusions of the High Court are manifestly perverse and unsupportable from the evidence on record. (^3) Moot Proposition – para 12 and 13. (^4) Moot Proposition – para 14. (^5) Ganga Kumar Srivastava v. State of Bihar (2005) 6 SCC 211. (^6) The Constitution of India – art.136.
The brief description of procedure is enshrined under Sec. 42^7 , and Sec. 50^8 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985 and states that in the context in which the right had been conferred to the accused, it must naturally be presumed that it is imperative on the part of the officer to inform the person to be searched of his right that if he so requires he shall be searched before a gazetted officer or Magistrate and on such request being made by him, to be taken before the gazetted officer or Magistrate for further proceedings. The reasoning given in Balbir Singh case^9 was that to afford an opportunity to the person to be searched “if he so requires to be searched before a gazetted officer or a Magistrate” he must be made aware of that right and that could be done only by the empowered officer by informing him of the existence of that right. The Court went on to hold that failure to inform the person to be searched of that right and if he so requires, failure to take him to the gazetted officer or the Magistrate, would mean non-compliance with the provisions of Section 50 which in turn would “affect the prosecution case and vitiate the trial. Sec 42 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985 may be understood in following manner: The above provision pertains only to the search of buildings conveyances and enclosed places.^10 Officer empowered under Section 41(2) having reasonable belief owing receipt of an information or from his personal knowledge regarding commission of an offence under the Act has a right to conduct search in the manner prescribed in the provision after recording the information received in writing and obtaining authorisation in the manner prescribed under the Act. If the officer has reason to believe that an authorisation cannot be obtained as same would lead to affording of an opportunity to accused to conceal material evidences, the officer may conduct search without authorisation after duly recording such reasons to believe. Information received or reasons to believe for not obtaining an authorisation must be sent to a designated senior officer within 72 hours of recording the same. (^7) Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985 – sec 42. (^8) Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985 – sec 50. (^9) State of Punjab v. Balbir Singh 1994 (3) SCC 299. (^10) Krishna Kanwar v. State of Rajasthan , (2004) 2 SCC 608.
Principle of safety Positive measures Principle of non-stigmatising semantics Principle of non-waiver of rights Principle of equality and non-discrimination Principle of right to privacy and confidentiality Principle of institutionalization as a measure of last resort Principle of repatriation and restore ration Principle of fresh start Principle of diversion Principles of natural justice. Doli Incapax : The underlying jurisprudence of to Section 3 of the said act emanates from the Latin Maxim doli incapax. Doli incapax is a Latin legal maxim which translates as "unable to do any harm or commit a crime." It is assumed that a child is incapable of developing the essential criminal intent to commit a crime. The maxim is founded on the following reasoning/principles: A person is only legally accountable for activities that he intends to perform. A kid under the age of seven does not have adequate mental knowledge to understand the implications of his acts, and hence lacks the criminal intention/mens rea required to convict someone of an offence. At such a young age, a child must be shielded from the rigours of the law. The provisions impugned are those of a statute whose language authorised the class legislations and its inherent restrictions which could be constitutional in certain circumstances and unconstitutional in others.^15 In such a context, it was said that where a law purports to authorize the class legislation and imposition of restrictions on a fundamental right in language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting such right, it is not possible to uphold it even so far as it may “be applied” within the constitutional limits, as it is not severable; so long as the possibility of its being applied for purposes not sanctioned by the Constitution cannot be ruled out, it must be held to be wholly unconstitutional and void. 16 (^15) Romesh Thapar v. State of Madras (1950) SCC 436. (^16) Ram Manohar Lohia v. State of Bihar and Anr. (1966) 1 SCR 709.
ISSUE 2
Rule of law is one of the primal principles that are indicative of foundational well-being of any state. There is an element of assurance that is deeply inherent in the concept of rule of law. A state where rule of law is “protected and promoted” is also taken to be a state where people are assured of their basic rights. The Rule of Law inspires loyalty among citizens if it is respected by the government. Rule of Law are deficient if they are not just, understandable, and responsive to the needs of society. If a lawyer believes that the existence or absence of a rule of law, substantive or procedural, causes or contributes to an unjust result, he should endeavour by lawful means to obtain appropriate changes in the law. He should encourage the simplification of laws and the repeal or amendment of laws that are outmoded 17. Therefore, it is humbly submitted that the impugned legislation contributes to an unjust result, where the fundamental rights guaranteed by the Constitution are violated in full public view. (^17) Professional Responsibility : Report of the Joint Conference, 44 A.B.A.J. 1159, 1217 (1958).
approach towards penalising Juvenile delinquency is the only way to tackle the menace of children committing serious crimes. Therefore, Section 2(13)^21 of the JJ Act, 2015 defines ‘child in conflict with law’ as a child who is alleged or found to have committed an offence and who has not completed 18 years of age on the date of commission of such offence.
- Upon literal interpretation of the statute regarding the definition of ‘Juvenile’ and ‘child in conflict with law’, we can infer that there is a blanket immunity of absolute criminal liability for any person who has not completed 18 years of age. Henceforth, the purpose of the said statute is defeated in the literal interpretations^22. 2.3 PRESUMPTION OF BIAS: The punishment of juveniles in the adult criminal justice system is damaging and inappropriate^23. It is a general precedential notion that no individual younger than the age of 18 is legally allowed to be sentenced to heinous punishments^24. In case of a heinous offence alleged to have been committed by a child who has completed or is above the age of sixteen years, the Board is given the powers to conduct a preliminary assessment with regard to determination of his mental and physical capacity to commit such offence. The Preliminary Assignment in the particular instance, may take the assistance of experienced psychologists or psycho- social workers or other experts to determine the same. In order to do such a preliminary assessment, the Board may take the assistance of experienced psychologists or psycho-social workers experts or other experts. By that itself, it cannot be construed that the J.J. Board under all circumstances of the case and necessarily take the assistance of the experts. If the materials placed before the J.J. Board and the circumstances of the case themselves helps it to arrive at a proper assessment, then, non-taking of any experts opinion or non-taking the assistance of any expert would not take away the validity of its opinion or finding^25_._ The issue with this, may be determined by matter of perspectives, by the interpretation of the word ‘ may’. If there was consultation of any psychiatrist or psychologist, and there was heavy reliance upon the reports of the same, can such a (^21) The Juvenile Justice (Care and Protection of Children) Act, 2015 – Sec 2(13). (^22) Ashwini Kumar v. State of Madhya Pradesh (2012) 9 SCC 750. (^23) Watkins , 2008 (^24) Roper v. Simmons, 2005 (^25) H.S. Poornesh v. State by Mallandur Police, CRL.RP 327/
report be deemed completely valid is the question that needs to be answered. A reference can be made towards a similar Question of Action, where there was a matter up before the court, about the validity of suspension of an officer on grounds of report of a committee. If the Government chooses to make any decision on the basis of the findings of the Central Vigilance Committee, then there would be a possibility of presumption of Bias, as the government may have subconsciously presumed a person to be innocent/guilty according to the reports. But at the same time, if the government chooses not to rely upon such findings, it would render the establishment of the very committee useless^26. The methods used to assess competence are exceedingly subjective, and the proper judgement is not always made. Going on with purely evaluation for knowing the child is guilty will result in further issues^27. 2.4 NON CONSIDERATION OF ARTICLE 20(3): The preliminary assessment is not intended to elicit a confession from the child or to arrive at a conclusive determination regarding the child's culpability, regardless of any information provided in the Social Investigation Report or through other interactions. Reliance on any confession obtained from the child is inconsistent with the constitutional right against self- incrimination as guaranteed under Article 20(3) of the Constitution of India. Consequently, there exists a categorical prohibition on the utilization of any material, in any format, whether presented consciously or inadvertently, before the Juvenile Justice Board, for instance, By using words such as “clever” and reading the alleged confession against him being a complete violation of Article 20(3), the Board has clearly gone contrary to the principle of presumption of innocence provided under section 3(i) of the Act, 2015 read with rule 10A(3) Model Rules and section 3(viii) which mandates that there shall be no adversarial or accusatory words used in involving a child^28. The same has also been observed by the High Court of Delhi in the order dated 19 September 2022^29 , wherein the Court stated its concerns regarding how the Social Investigation Report (SIR) and Preliminary Assessment Report is not to be used against the child in conflict with law. (^26) Sumith Kumar vs State of West Bengal (^27) Bachpan Bachao Andolan v. Union of India (2017) 1 SCC 653. (^28) Barun Chandra Thakur vs Master Bholu and Anr CRIMINAL APPEAL NO.950/ (^29) Vikas Sangwan vs State , CRL. REV.P. 696/
ISSUE 3
3. WHETHER THE ‘PRELIMINARY ASSESSMENT’ CONDUCTED UNDER
SECTION 15 OF THE JUVENILE JUSTICE ACT, 2015 IS VIOLATIVE OF
SECTION 3 OF THE JUVENILE JUSTICE ACT, 2015?
3.1 It is submitted to the Hon’ble Bench that the the ‘ Preliminary Assessment ’ conducted under Section 15 of the Juvenile Justice Act, 2015 is violative of Section 3 of the Juvenile Justice Act, 2015. Even if it may be legally put forth that there are enough safeguards under Section 3 of the JJ Amendment Act, 2015, for the protection and
safeguard of juveniles under this provision, these principles are mere magic words, explained thereto by the Hagerstrom’s Concept of Magic Words^30. 3.2 There are two factors that must have been taken into consideration prior to any form of punishment that is given to juveniles. They are: Can and Should a Juvenile be tried as an Adult? Is there a dichotomy between the Rule and the Standard; and has it been addressed? C A N A N D S H O U L D A J U V E N I L E B E T R I E D A S A N A D U L T U / S 1 8 O F J U V E N I L E J U S T I C E A C T? 3.2.1 Both, the Juvenile Justice Act^31 , and the subsequent Juvenile Justice Model Rules, 2016^32 provide that both the Children's Court and the Juvenile Justice Board should proceed with a presumption of innocence. Ironically, the presumption is weakened by the necessity for the Juvenile Justice Board (JJB) to evaluate the child's comprehension and capability to engage in the alleged offense when determining the trial procedure^33. The JJB is also required to consider the “alleged circumstances” in which the offence was committed^34. It is impossible to judge such capacity without going into the merits of the crime. The capacity and understanding of a child cannot be judged unless such decision is based on the premise of commission of the crime. This preliminary assessment is examined by the Children's Court so as to decide whether such a trial is justified^35. This goes against the presumption of innocence, which forms the bedrock of every trial, because the ultimate objective If justice is not only to provide justice, but also to show that justice has been made^36. There is (^30) Hagerstrom's concept of magic in legal or in language : Lloyd's Introduction to Jurisprudence at p. 858. He explains that as prospective spouses are made to go through marriage ceremonies and the rituals make them and other onlookers made to believe that the couple is now altogether different from the position before marriage. (^31) The Juvenile Justice (Care and Protection of Children) Act 2015 , s 3 (^32) The Juvenile Justice Rules , 2016 , rr 16, 17, 18, 19, and 21 (^33) Department-related Parliamentary Standing Committee on Human Resource Development, Submission on the Juvenile Justice (Care and Protection of Children) Bill, 2014 by the Centre for Child and the Law (21 October
(^34) The Juvenile Justice (Care and Protection of Children) Act 2015 , s 15 (^35) The Juvenile Justice (Care and Protection of Children) Act 2015 , s 19. (^36) K. Anbazhagan v Superintendent of Police , AIR 2004 SC 524
