The 17-year-old boy who killed two software engineers with his speeding Porsche in Pune's Kalyani Nagar early on Sunday was sent to an observation home following an order by the Juvenile Justice Board (JJB).
Earlier, the JJB had granted the minor bail within hours of his arrest. The JJB had also rejected the police's request for his trial as an adult. The bail conditions included writing a 300-word essay on accidents, painting traffic awareness boards, working with a traffic constable, and attending counselling sessions. This sparked outrage among the public, with even Maharashtra Deputy Chief Minister Devendra Fadnavis calling it “shocking and surprising.” “We feel JJB’s order ended up raising many questions. The board took a lenient view of the matter. The order needs to be reviewed,” he added.
Following the outcry, the JJB on Wednesday issued a notice to the minor to appear before it. Later in the day, it remanded him to the observation home until June 5. However, the question of whether he will be tried as an adult still remains.
According to advocate Prashant Patil, who represented the minor at the JJB hearing, the process of deciding whether a minor should be treated as an adult can take at least two months as reports from psychiatrists and counsellors, among others, are called for, and then the JJB gives its decision.
What does the law say?
According to Section 15 of the Juvenile Justice Act, to decide whether the minor can be tried as an adult, the JJB needs to conduct a preliminary assessment of the minor's mental and physical capacity to commit an offence, his ability to understand the consequences of the offence, and the circumstances in which he allegedly committed the offence.
This amendment to the Juvenile Justice Act came after the 2012 Nirbhaya case, which stated that children between the ages of 16-18 can face trial as adults if they are accused of a heinous crime. “Heinous crime” is defined under the law as “any offence punishable with more than seven years imprisonment.” These include murder, rape, robbery, acid attacks, waging war against the government, drug trafficking, and human trafficking, among others.
If the JJB decides to try the minor as an adult, the case is transferred to the children’s court.
Expert opinion
Vivek Narayan Sharma, a Supreme Court advocate, told The Free Press Journal, "As per the outgoing law, i.e., the Indian Penal Code (IPC), which is currently in effect, causing the death of a person not amounting to culpable homicide attracts imprisonment of a maximum of two years. This remains the same in the new law i.e., Bharatiya Nyaya Sanhita (BNS), but there is a provision in BNS which provides 10 years’ imprisonment if the person causing it does not inform the concerned authorities. Keeping this in mind, it is to be seen whether acts of such gravity should be dealt with under rash and negligent driving or culpable homicide."
Citing examples, Sharma said, "In the Alistair Pereira case, the Supreme Court held that rash or negligent driving with the knowledge of the dangerous character and the likely effect of the act, resulting in death, may fall in the category of culpable homicide not amounting to murder. The police in that case had decided to make a case under Section 304 and not Section 304A."
"The JJB, in a similar case of drinking and driving resulting in death by a 16-year-old boy, i.e., Shilpa Mittal v NCT of Delhi, had ordered the trial of the minor as an adult, but the major lacunae right now in the Juvenile Law, which was pointed out, was the definition of heinous crime which says that the minimum punishment shall be of seven years for classification as a heinous offence for trying the minor as an adult. The Supreme Court in the same case held that until there is an amendment in legislation, crimes where no minimum punishment is given but the maximum punishment is more than seven years, shall be treated as serious offences and not heinous offences," he added.
"Even the introduction of the new criminal law BNS does not change the scenario since it also does not prescribe any minimum punishment for cases where the act is done with the knowledge of causing death. So there is an urgent need for an amendment in the provision so that it conforms and is consistent with the gravity of such acts," Sharma further said.
The Pune Porsche Crash Case, the SC lawyer said, is a glaring example of the lacunae in the law. "The minor driver was drunk, rash, and negligent and still the JJB left him scot-free with reprimands of a non-serious nature. The JJB was duty-bound to follow the letter of the law and the law of the land. But this clearly reflects that this law needs change. The JJB should have sent the minor to a correctional home while ascertaining whether a heinous offence had been committed by the minor or not, and only after that should bail have been considered by either the JJB," he added.
