Explainer – Can teen driver be tried as an adult in Pune Porsche case?

Pune: For the last few days, there has been a general outrage in the media by citizens over the Pune Porsche accident case and demands for trial of the Juvenile involved in the accident, which resulted in the death of two young IT professionals, as an adult.

Can a minor or a juvenile who is below the age of 18 years be tried as an adult?

The general proposition of law has been that of presumption of innocence. A child shall be presumed to be an innocent of any malafide or criminal intent up to the age of eighteen years and hence has to be dealt not as criminal but as children who need care and protection.

However, after the ghastly “Nirbhaya” case in the national capital, a debate was started on trial of juveniles as adults. Justice JS Verma Committee, which was set up to look into this aspect, recommended changes in the Juvenile Justice Act to try juveniles between ages 16 and 18 to be tried as adults.

Subsequently, changes were made in the Juvenile Justice Act which now allows minors accused of criminal acts to be tried as adult.

Law on trial of a minor as an adult

For a minor to be tried as an adult, the law mandates that there should a preliminary assessment done by the Juvenile Justice Board (JJB) of the minor’s intelligence, physical capacity and his understanding of the consequences of the actions.

Section 15(1) of the Juvenile Justice Act says, “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 shall conduct a preliminary assessment with regard to his mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence, and may pass an order that there is a need for trial of the said child as an adult, then the Board may order transfer of the trial of the case to the Children’s Court having jurisdiction to try such offences [in accordance with section 18(3)]. It further states that for such an assessment, the Board may take the assistance of experienced psychologists or psycho-social workers or other experts.”

So, there are three requirements for a minor to be tried as an adult.

First, the child in conflict with law must be accused of committing a heinous offence. A heinous offence has been described as one carrying a punishment of more than 7 years under any law.

In the Pune Porsche case, the juvenile is 17-year-old and is booked under section 304 A of the Indian Penal Code. Section 304 A carries a maximum punishment of 3 years, so by this yardstick the juvenile does not fall in the category of having committed a heinous offence.

Pune Police have filed a review application before JJB

However, the Pune police have filed a review application before the Juvenile Justice Board, saying that the juvenile needs to be tried as an adult as now he has been charged under section 304 part II of the Indian Penal Code which carries a punishment of up-to 10 years and hence his act falls in the heinous offence category.

Second, the Juvenile Justice Board (JJB) has to conduct a preliminary assessment of the Juvenile’s mental and physical capacity and his ability to understand the consequences of the action. For conducting the preliminary assessment of the child, the JJB can seek help of experienced psychologists and other experts. This preliminary assessment has to be carried out within 3 month by the JJB.

In the preliminary assessment, the board has to take into consideration physical capacity of the child to commit alleged offence; mental capacity of the child; the circumstances in which the child allegedly committed the offence and his ability to understand the consequences of the offence.

After going through the preliminary assessment, the JJB can pass an order for the trail of the juvenile as an accused.

JJB’s decision on transfer of trail; has to commendatory have socio- demographic details of the child; whether the child also qualifies as a child in need of care and protection; details of the procedure followed by the JJB, psychologists and other experts (if any) including the psychological tests administered; and reasons.

What did Supreme Court recently held on juvenile?

The Supreme Court of India recently held that a juvenile cannot be tried as an adult if the requirement of the preliminary assessment of the juvenile is not conducted.

The Bombay High court in 2019 set aside a report of the Juvenile Justice Board that recommended two juveniles to be tried as adults.

The High court in its order remarked that the JJB was the gravity of the offence and the said “public outcry must have heavily weighed on the Report.”