Source: Karnataka High Court

Why in News?

Recently, the High Court of Karnataka in the matter of Shrishail v. State of Karnataka, has held that a child, whether an offender or not, is a child and has to be treated as a child.

• The Court also issued guidelines for ascertaining the juvenility of an accused.

What was the Background of Shrishail v. State of Karnataka Case?

• In this case, the juvenile accused had trespassed into the victim minor girl's house and had sexual intercourse with her in her family's absence.
• On knowing about the offence committed by the juvenile accused on the victim, the parents of the victim lodged the complaint.
• The special court convicted the juvenile under the provisions of Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO).
• Thereafter, an appeal was filed before the High Court.
• The Court allowed the appeal as the juvenile accused had been in custody for more than 3 years and 3 months, while the maximum detention in special homes permissible under Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act) was 3 years.

What were the Court’s Observations?

• Justice C M Joshi observed that there is no doubt that a Magistrate or Special Court has to make certain preliminary enquiry with the accused when produced for the first time in a criminal case during the crime stage. These enquiries are not mere formalities, but they have a vital importance in ascertaining an accused to be a juvenile, mentally fit and the requirements of law are fulfilled. A child, whether an offender or not, is a child and has to be treated as a child.
• The Court also issued the following guidelines for ascertaining the juvenility of an accused.
  • The Learned Magistrate/presiding officer of the Special Court must satisfy that the accused is not a minor.
  • Whenever accused of the age of 18 to 22 years is produced, the Investigating Officer (IO) or the accused may be directed to produce documentary proof of his age.
  • At the time of first production of accused, an oral enquiry about the age, apart from ill treatment by Police, intimation to the family members of the accused, reason for arrest, place of arrest, and ailments if any be made and recorded in the order of remand.
  • An early ascertainment of the juvenility of the accused would be of great importance in reforming the child.

What are the Relevant Legal Provisions Involved in it?

POCSO Act, 2012

• This Act was passed in 2012 under the Ministry of Women and Child Development.
  • It is a comprehensive piece of legislation designed to protect children from crimes including sexual assault, sexual harassment, and pornography.
• It is a gender-neutral act and considers the welfare of the child as a matter of paramount importance.
  • It provides for the establishment of Special Courts for trial of such offences and related matters and incidents.
• Death penalty as a punishment for offences of penetrative sexual assault and aggravated penetrative sexual assault was introduced in this act by the POCSO Amendment Act, 2019.
• Under Section 2(1) (d) of the POCSO Act, a child is defined as any person below the age of 18 years.
• Section 6 deals with the punishment for aggravated penetrative sexual assault. It states that

(1) Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person and shall also be liable to fine, or with death.

(2) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim.

Juvenile Justice (Care and Protection of Children) Act, 2015

• The Juvenile Justice (Care and Protection of Children) Act, 2015 came into force on January 15, 2016.
  • It repealed the Juvenile Justice (Care and Protection of Children) Act, 2000.
• This Act seeks to achieve the objectives of the United Nations Convention on the Rights of Children as ratified by India on December 11, 1992.
  • It specifies 58+ procedural safeguards in cases of children in conflict with law.
• It seeks to address challenges in the existing Act such as delays in adoption processes, high pendency of cases, accountability of institutions, etc.
• The Act further seeks to address children in the 16-18 age group, in conflict with law, as an increased incidence of crimes committed by them have been reported over the past few years.
• According to Juvenile Justice (Care and Protection) Amendment Act, 2021, crimes against children which are mentioned in the chapter “Other Offences Against Children” of the JJ Act, 2015 and that allows imprisonment between three and seven years will be deemed non-cognizable.
• As per Section (35) of this Act, juvenile means a child below the age of eighteen years.