The 1st Mrinalini Devi Memorial National Moot Court Competition, 2017 Bengal Law College, Shantiniketan

The 1st Mrinalini Devi Memorial National Moot Court Competition, 2017
BLCRL21
Bengal Law College, Shantiniketan
In association with
RostrumLegal
BEFORE THE HIGH COURT OF BANGLA, INDICA
WRIT PETITION (CRL.) NO. 124 OF 2015
PEOPLES’ CONSCIENCE ………………APPELLANT
VERSUS
UNION OF INDICA AND ANR. ……………RESPONDENTS
MEMORIAL ON BEHALF OF THE APPELLANT
MEMORIAL ON BEHALF OF APPELLANT 1

TABLE OF CONTENTS
List of Abbreviations……………………………………………………… Page 4

Index of Authorities……………………………………………………………......Page 5-6
Statement of Jurisdiction………………………………………………………..…Page 6
Statement of facts………………………………………………………………… Page 7-10
Issues for Consideration………………………………………………………… Page 11
Summary of Arguments…………………...………………………………………Page 12-13
Written Submissions………………………………………………………………Page 14-19
Prayer…………………………………………………………………………… Page 20

LIST OF ABBREVIATIONS
SCC SUPREME COURT CASES
SC SUPREME COURT
AIR ALL INDIA REPORTER
CRC CONVENTION OF THE RIGHTS OF THE CHILD,
UN UNITED NATIONS
BOM BOMBAY
CAL CALCUTTA
SCR SUPREME COURT REPORTER
SCW SUPREME COURT WEEKLY
NGO NON-PROFIT ORGANISATION

INDEX OF AUTHORITIES
 People’s Union for Democratic Rights v. Union of India AIR 1473,1983 SCR(1) 456.
 Mithu vs state of Punjab 1983 AIR 473,1983 SCR (2) 690.
 Dadu vs state of Maharashtra (2000) 8 SCC 437
 Yeshwant S/O Natthuji Meshram vs State of Maharashtra AIR 1977 Bom 99
 Dayabhai Poonambhai Patel vs The Regional Transport Authority,1951
 State Bank of India & ors vs S.N Goyal AIR 2008 SC 2594
 Ratanlal bansilal & ors vs Kishorilal Goenka & ors AIR 1993 Cal 144
 Dr.Subramaniam Swamy & ors vs Raju the member of Juvenile justice, 2014 AIR
(SC) 1694
 Jitendra pani vs state of Orissa AIR 2010 SCW 2881
 Anil vs the state (2009)
 Salil bali vs union of india & ors (2013) 7 SCC 705
 Deepak kumar vs state (2012)

STATEMENT OF JURISDICTION
The Hon’ble High Court of Bangla has the jurisdiction in this matter under
Art. 226 of the Constitution of Indica which reads as follows:
“226. Power of High Courts to issue certain writs-

(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout
the territories in relation to which it exercise jurisdiction, to issue to any person or authority,
including in appropriate cases, any Government, within those territories directions, orders or
writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto
and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III
and for any other purpose
(2) The power conferred by clause (1) to issue directions, orders or writs to any Government,
authority or person may also be exercised by any High Court exercising jurisdiction in
relation to the territories within which the cause of action, wholly or in part, arises for the
exercise of such power, notwithstanding that the seat of such Government or authority or the
residence of such person is not within those territories
(3) Where any party against whom an interim order, whether by way of injunction or stay or
in any other manner, is made on, or in any proceedings relating to, a petition under clause (1),
without
(a) furnishing to such party copies of such petition and all documents in support of the plea
for such interim order; and
(b) giving such party an opportunity of being heard, makes an application to the High Court
for the vacation of such order and furnishes a copy of such application to the party in whose
favour such order has been made or the counsel of such party, the High Court shall dispose of
the application within a period of two weeks from the date on which it is received or from the
date on which the copy of such application is so furnished, whichever is later, or where the
High Court is closed on the last day of that period, before the expiry of the next day
afterwards on which the High Court is open; and if the application is not so disposed of, the
interim order shall, on the expiry of that period, or, as the case may be, the expiry of the aid
next day, stand vacated
(4) The power conferred on a High Court by this article shall not be in derogation of the
power conferred on the Supreme Court by clause (2) of Article 32.

STATEMENT OF FACTS
BACKGROUND
1. On the First day of March 2015, a young girl, aged about nineteen (19) years was
returning from her tuition classes, situated around three (3) kilometers away from her
parental home, in Golpur District of State Bangla. She was riding her bicycle back
home, and was forcibly stopped by a group of five (5) persons, adjacent to a barn
which happens to be deserted by the owners and falls in the way home of the girl. The
persons took advantage of the fact that the road was deserted at point of time, and
forcibly dragged the girl to the barn, after gagging her mouth, so that the girl could
not even shout for help.
2. The girl was brutally assaulted sexually, and thereafter was bathed in country liquor
and set ablaze.
3. The girl received fatal burns of the third degree, and succumbed to her wounds on
March 3rd, 2015. Based on her dying declaration, all five (5) persons were
apprehended in connection with the crime. One of them, identified for the purpose of
the present case as Rana, was below eighteen (18) years of age on the date of
commission of the crime, and is still a Juvenile as per meaning given in Juvenile
Justice Act, 2000.
JUDICIAL PROCEEDINGS
4. Accordingly, in compliance with the provisions of the Juvenile Justice Act, 2000 (as
amended and hereinafter referred to as ‘the Act’) his case was referred for inquiry to
the Juvenile Justice Board. The other accused were tried in a regular sessions court
and have been found guilty, inter alia, of the offences under Section 376D and Section
302 of the Indican Penal Code, 1860 (for short “the Penal Code”). The learned trial
court has sentenced them to death. Their appeal against the aforesaid conviction and
the sentence imposed has since been dismissed and the High Court of Bangla has
confirmed the death penalty.

5. Peoples’ Conscience (hereafter referred as “the group” or the petitioners, both being
referred to the same person/group of persons) is a Non-Profit Organization working
for the socio-legal rights of the women and children in the geographical areas in
Indica, where limited means both in terms of economic and knowledge impede the
residents of such in their demand for natural justice.
6. Before the Juvenile Justice Board to whom the case of Rana was referred for inquiry,
the petitioners had filed applications for their impleadment to enable them to
‘prosecute’ the juvenile alongside the public prosecutor. The petitioners also claimed
that, on a proper interpretation of the Act, the juvenile was not entitled to the benefits
under the Act but was liable to be tried under the penal law of the land in a regular
criminal court along with the other accused.
7. According to the petitioners, after an elaborate hearing, the Board had fixed the case
on July 25th, 2015 for pronouncement of order on the question of maintainability of
the application filed by the petitioners and also on their prayer for impleadment.
However, insofar as the interpretation of the provisions of the Act for determination
of the question whether the offence(s) allegedly committed by the juvenile is to be
inquired into by the Board or the Juvenile is required to be tried in a regular criminal
court is concerned, the Board had expressed its inability to decide the same and had
directed the petitioners to seek an authoritative pronouncement on the said issue(s)
from the Hon’ble High Court.
8. Accordingly, the petitioners instituted a writ proceeding before the Hon’ble High
Court of Bangla, which was registered as Writ Petition (Crl.) No. 124 of 2015,
seeking the following reliefs:-
a. Laying down an authoritative interpretation of Sections 2(I) and 2(k) of the Act that
the criterion of eighteen (18) years set out therein does not comprehend cases grave
offences in general and of heinous crimes against women in particular that shakes the
root of humanity in general.
b. That the definition of offences under Section 2(p) of the Act be categorized as per
grievousness of the crime committed and the threat of public safety and order.
c. That Section 28 of the Act be interpreted in terms of its definition, i.e., alternative
punishment and serious offences having minimum punishment of seven years
imprisonment and above be brought outside its purview and the same should be tried
by an ordinary criminal court.

d. Direction striking down as unconstitutional and void the Juvenile Justice (Care and
Protection of Children) Act, 2000 (Act No. 56 of 2000) to the extent it puts a
blanket ban on the power of the criminal courts to try a Juvenile offender for offences
committed under the Indican Penal Code,1860; and
e. Incorporating the International concept of age of criminal responsibility and

diluting the blanket immunity provided to the juvenile offender on the basis of age
along with the Direction that the Respondent be tried forthwith by the competent
criminal court
9. The group at the outset, clarified that they are neither challenging the provisions of
Section 2(k) and 2(l) of the Act nor is he invoking the jurisdiction of the Court to
strike down any other provision of the Act or for interference of the Court to reduce
the minimum age of Juveniles fixed under the Act as eighteen (18) years.
10. What The group has contended is that having regard to the object behind the
enactment, the Act has to be read down to understand that the true test of “juvenility”
is not in the age but in the level of mental maturity of the offender. This, it is
contended, would save the Act from unconstitutionality and also further its purpose.
The Act is not intended to apply to serious or heinous crimes committed by a
Juvenile.
11. The provisions of Sections 82 and 83 of the Indican Penal Code have been placed to
contend that while a child below seven (7) cannot be held to be criminally liable, the
criminality of those between seven (7) and twelve (12) years has to be judged by the
level of their mental maturity.
12. The same principle would apply to all children beyond twelve (12) and up-to eighteen
(18) years also, it is contended.
13. The provisions of Section 1(4) of the Act, which makes the provisions of the Act
applicable to all cases of detention, prosecution and punishment of Juveniles in
conflict with law, to the exclusion of all other laws, would be unconstitutional if the
Act is not read down. Specifically, the group contends that in that event the Act will
offend Article 14 of the Constitution of Indica as all offenders below the age of
eighteen (18) years irrespective of the degree/level of mental maturity and irrespective
of the gravity of the crime committed would be treated at par. Such a blanket
treatment of all offenders below the age of committing any offence, regardless of the
seriousness and depravity, is wholly impermissible under our constitutional scheme.
The non-obstante provisions contained in Section 1(4) of the Act as well as the bar
imposed by Section 7 on the jurisdiction of the criminal court to try juvenile offenders

cannot apply to serious and heinous crime committed by juveniles who have reached
the requisite degree of mental maturity, if the Act is to maintain its constitutionality.
14. The provisions of the United Nations Standard Minimum Rules for the
Administration of Juvenile Justice, 1985 (Beijing Rules); the Convention of the
Rights of the Child, 1990 (CRC) and the United Nations Rules for the Protection of
Juveniles Deprived of their Liberty, 1990 (Havana Rules), SCALE 1 International
Commitments entered into by Indica obliges it to set up a particular framework to deal
with Juvenile offenders and such obligations can be more comprehensively met.
15. The practice in vogue in several foreign jurisdictions, particularly, in the U.K., USA
and Canada for adjudicating criminal liability of young offenders has also been placed
before the Court. Specifically, it is pointed out that the practice of statutory exclusion
which ensures that perpetrators of certain grave offences are prosecuted as adults;
‘judicial waiver’, granting discretion to special Juvenile Courts to waive jurisdiction
and transfer the Juvenile’s case to an ordinary court of law and also the policy of
concurrent jurisdiction of both the ordinary and juvenile courts giving discretion to
the prosecutor to initiate proceedings in the more suitable court are followed in such
jurisdictions.
16. The group has also suggested that Section 28 of the Act be read together with Section
15 to enable the alternatively higher punishment under other State/Central
enactments, such as the Penal Code to be awarded to a juvenile offender. It is argued
that this would incorporate the policy of concurrent jurisdiction of both ordinary
criminal courts and Juvenile Justice Boards.

ISSUES FOR CONSIDERATION
1. WHETHER THE WRIT PETITION FILED BEFORE THE HIGH COURT

IS MAINTAINABLE OR NOT.
2. WHETHER THE JUVENILE JUSTICE ACT PROVIDE BLANKET

IMMUNITY ON THE JUVENILE OFFENDERS.
3. WHETHER THE TRUE TEST OF JUVENILITY IS IN THE AGE OR

MENTAL MATURITY OF THE OFFENDER.
4. WHETHER THIS ACT (JUVENILE JUSTICE ACT) IS IN

CONTRAVENTION WITH THE CONSTITUTION OF INDICA AND
INTERNATIONAL NORMS TO WHICH INDICA IS SIGNATORY
MEMORIAL ON BEHALF OF APPELLANT

10
SUMMARY OF ARGUMENTS
1. WHETHER THE PUBLIC INTEREST WRIT PETITION FILED BEFORE

THE HIGH COURT OR MAINTAINABLE OR NOT.
It is humbly submitted that the public interest brought before Hon’ble High Court litigation
is maintainable under the Article 226 of the Constitution of India. It is contended that the
jurisdiction of the Hon’ble High Court under Article 226 is invoked when a question of
protection public interest arises and of when substantial question of law is involved under
Article 2261.
2. WHETHER JUVENILE JUSTICE ACT PROVIDE BLANKET IMMUNITY ON

THE JUVENILE OFFENDERS.
It is submitted before the Hon’ble Court that the Juvenile Justice Act, 2000 in several ways
tries to provide a blanket of immunity on the juvenile offender.
The several provisions as read under the Act, virtually ousts the criminal justice system
from dealing with any offence committed by a juvenile. The prime focus of such provisions
are not on the crime committed but on the reasons that led the juvenile to such conduct.
The entire scheme of the Act is substantially different from what is provided by Code of
Criminal Procedure for investigation of offences and trial and punishment of offenders, it is
submitted that the act offends a core constitutional value namely the entire existence of a
criminal justice system.
As read under the Sec 7 of the Juvenile justice Act:-
The ban on the jurisdiction of criminal courts under the section 7 of the Act is unconstitutional
as it expels the criminal justice system from dealing with any offence committed by a
juvenile.(The maximum power of punishment under the Act on proof of guilt, is to send the
juvenile to a special home for 3 years.).
It is further submitted that the Act in place of regular criminal trial does non-adversarial inquiry
against the juvenile.
Reliance in this regard is placed on the judgments of the apex court in the case of Mithu v State
Punjab2 and Dadu v State of Maharashtra3
1
People’s Union for Democratic Rights v. Union of India AIR 1473,1983 SCR(1) 456.
2
1983 AIR 473,1983 SCR (2) 690.
3
(2000) 8 SCC 437.
11
3. WHETHER THE TRUE TEST OF JUVENILITY IS IN THE AGE OR MENTAL

MATURITY OF THE OFFENDER.
It is humbly submitted before the Hon’able High Court that the Act is ambiguous whether
the true test of juvenility is upon age or mental maturity. Under section 2(k) a juvenile or child
means any person who has not completed eighteen (18) eighteen years of age and under section
2(l) a juvenile in conflict with law is a juvenile who is alleged to have committed the offence.
Further, under the section 82 and section 83, of the Indian Penal code, it have been contended
that while a child below 7 cannot be held to be criminally liable, the criminal liability of those
between 7 and 12 years of age has to be judged by the level of their maturity .However, the
section is silent on the age between 12-18 years of the age as in the present case it is contended
that the same principle would apply to children beyond 12 and upto 18 years of age.
However, the Juvenile Justice Act is not intended to apply to serious or heinous crimes
committed by a juvenile.
The main focus of the Act is not on the crime committed but on the reasons that led the juvenile
to such conduct, the maximum punishment is sending the juvenile to special home for 3 years,
however, if the same charges are imposed upon an adult, the punishment for such grave offence
would attract imprisonment for life or death.
Therefore, the Act is unjustified on the quantum of punishment for the nature of offence
committed by juvenile.
4. WHETHER THIS ACT (JUVENILE JUSTICE ACT) IS IN

As submitted before the court the present Juvenile Justice Act,2000 offends article 14
of the constitution of Indica as all offenders below the age of 18 years irrespective of
the degree of mental maturity and irrespective of the gravity of the crime committed
would be treated at par regardless of the seriousness of the offence is wholly
inadmissible under the Constitution.
The international norms also obliges to set up a particular framework to deal with
juvenile offenders and therefore, such rules shall be met more comprehensively and
by way so that justice is done to the juvenile offender but the grave offences
committed by the juvenile should be tried in procedure to provide justice to the
offence victim. And therefore, such terms are not met to provide natural justice and
therefore the act is in contravention to international norms.

12
WRITTEN SUBMISSIONS
1. WHETHER THE PUBLIC INTEREST WRIT PETITION FILED BEFORE

THE HIGH COURT OR MAINTAINABLE OR NOT.
It is humbly submitted that the public interest brought before Hon’ble High Court
litigation is maintainable under the Article 226 of the Constitution of India. It is
contended that the jurisdiction of the Hon’ble High Court under Article 226 is
invoked when a question of protection f public interest arises and of when substantial
question of law is involved under Article 226.
1.1 JURISDICTION OF HIGH COURT UNDER ARTICLE 226 CAN BE

INVOKED FOR THE ISSUE OF DIRECTION, ORDER, WRIT TO PERSON,
AUTHORITY OR ANY GOVERNMENT IN THAT TERRITORY.
The writ powers of High Court are wider unlike Supreme Court, they are not limited
to fundamental rights but also on other legal rights4. A writ petition can be filed
before the High Court, as the constitution confers power on all the High Court of
India to issue orders, writs to any person, authority or in appropriate cases any
government for the enforcement of any rights conferred by part III of the
constitution and for the enforcement of any other legal right. The power conferred on
the High Court under Article 226 can be exercised even against the legislature5.
1.2 THE MATTERS MUST HOLD A SUBSTANTIAL QUESTION OF LAW

AND HENCE ENTITLED TO BE MAINTAINABLE.
The expression “substantial question of law has not been defined in constitution
but the Supreme Court has observed that on cases filed before the High Court,
there should be substantial question of law involved in the matter6
However, a question of law is substantial between parties can be determined if it does
not affect the decision, ultimately what is a substantial question of law would depend
upon the facts and circumstances of the each case7.
1.3 THE MATTER INVOLVES THE QUESTION OF PROTECTION OF PUBLIC

INTEREST AND HENCE ENTITLED TO BE MAINTAINABLE.
The public interest litigation filed before the Hon’ble High Court under Article
226 of the constitution, the person filing the petition must prove to the satisfaction
of the Court that the petition is being filed for a public interest. However, if the
matter is pro bono public, it is maintainable.
4
Yeshwant S/O Natthuji Meshram vs State of Maharashtra AIR 1977 Bom 99
5
Dayabhai Poonambhai Patel vs The Regional Transport Authority,1951
6
State Bank of India & ors vs S.N Goyal AIR 2008 SC 2594
7
Ratanlal bansilal & ors vs Kishorilal Goenka & ors AIR 1993 Cal 144
13
2. WHETHER JUVENILE JUSTICE ACT PROVIDE BLANKET

IMMUNITY ON THE JUVENILE OFFENDERS.
It is submitted before the Hon’ble Court that the Juvenile Justice Act, 2000 in
several ways tries to provide a blanket of immunity on the juvenile offender. The
several provisions as read under the Act, virtually ousts the criminal justice
system from dealing with any offence committed by a juvenile. The prime focus
of such provisions are not on the crime committed but on the reasons that the
juvenile to such conduct8
The entire scheme of the Act is substantially different from what is provided by
Code of Criminal Procedure for investigation of offences and trial and punishment of
offenders, it is submitted that the act offends a core constitutional value namely the entire
existence of a criminal justice system.
As read under the Sec 7 of the Juvenile justice Act:-
The ban on the jurisdiction of criminal courts under the section 7 of the Act is
unconstitutional as it expels the criminal justice system from dealing with any offence
committed by a juvenile.(The maximum power of punishment under the Act on proof
of guilt, is to send the juvenile to a special home for 3 years.).
It is further submitted that the Act in place of regular criminal trial does non-
adversarial inquiry against the juvenile.
Reliance in this regard is placed on the judgments of the apex court in the case of
Mithu v State Punjab9 and Dadu v State of Maharashtra10.
2.1. THIS ACT BANS THE JURISDICTION OF THE CRIMINAL COURT.
It is submitted before the Court that the Act under the section 7 of the Act,
bans the juvenile to be tried in a criminal Court11. Rana who was a juvenile at the
time of committing the offence, was not tried in the criminal court for his offences
but his case was referred to Juvenile Justice Board for inquiry under the Act, as
the Act ousts the criminal justice system from dealing with any offence committed
8
Dr.Subramaniam Swamy & ors vs Raju the member of Juvenile justice, 2014 AIR (SC) 1694
9
AIR 1983 SC 473
10
(2000) 8 SCC 437
11
Jitendra pani vs state of Orissa AIR 2010 SCW 2881
14
by a juvenile. The criminal judiciary system is constitutional and should apply to

all the matters under its jurisdiction the Parliament cannot make a law to expel the
judicial function of the Court, or even expel the judicial discretion in matters
which falls within the jurisdiction of the Court. Therefore, in furtherance of the
heinous offence committed by Rana, he must be liable to be tried by a competent
criminal court in accordance with the procedure prescribed.
2.2. THE ACT IS NOT INTENDED TO APPLY TO SERIOUS OR HEINOUS

OFFENCE COMMITTED BY JUVENILE.
It is submitted before the Court that Rana, the juvenile who has committed a
heinous offence of rape and murder shall be tried under the Act and where there is
a question of such serious offence the entire scheme under the Act is different
from what is provided by the Code of Criminal Procedure for investigation of
offence and for trial and punishment under the provisions of Act, the maximum
punishment on proof of guilt in a serious offence is to send the juvenile to special
homes for three years12. Therefore as the offence committed by Rana is heinous
and serious in nature and the Act does not apply to serious offence committed by
juvenile and he should not be entitled to the benefits under the Act . Rana shall
be liable to be tried under the penal law, in he regular criminal court along with
other offenders.
2.3. THE CRITERION OF 18YEARS UNDER THE ACT DOES NOT

COMPREHEND CASES OF GRAVE OFFENCES AND CRIMES AGAINST
WOMEN.
It is submitted before the Court, the section 2(l) and section 2(k) of the
Juvenile Justice Act 2000 reads as follows:-
Section 2(l) – “juvenile” or “child” means a person who has not completed eighteenth
year of age.
Section 2 (k) – “juvenile in conflict with law “means a juvenile who is alleged to have
committed an offence.
Therefore it can be interpreted that there is a criterion of eighteen (18) years set out
under the Act for the transition of a person from being a child to becoming an adult.
But, however it is universally known that a person below the criterion age that is 18
years is mentally as well as physically compatible to commit heinous offence.
And therefore the juvenility criteria should not be set out to be as 18 years for grave
offences and crimes against as the juvenile offender is compatible enough and the
provisions of the Act is easily escape for women as the true test of “juvenility” is not
the age but in the level of maturity of the offender.
12
Salil bali vs union of india & ors (2013) 7 SCC 705
15
3. WHETHER THE TRUE TEST OF JUVENILITY IS IN THE AGE OR

MENTAL MATURITY OF THE OFFENDER
It is humbly submitted before the Hon’ble High Court that the Act is ambiguous.
The true test of juvenility is upon age or mental maturity13.
Under section 2(k) a juvenile or child means any person who has not completed
eighteen (18) years of age and under section 2(l) a juvenile in conflict with law is a
juvenile who is alleged to have committed the offence.
Further, under the section 82 and section 83, of the Indian Penal code, it have been
contended that while a child below 7 cannot be held to be criminally liable, the
criminal liability of those between 7 and 12 years of age has to be judged by the level
of their maturity .However, the section is silent on the age between 12-18 years of the
age as in the present case it is contended that the same principle would apply to
children beyond 12 and upto 18 years of age.
Further, in cases where the correct age of juvenile cannot be determined but it is
deemed to be below 18 years of age and also in cases the Matriculation Certificate is
(improper) doubtful . So an Ossification test can be preferred to determine the exact
age of the juvenile14.
Further concluding that if the mental maturity is said to be attained and the
Ossification
Test is taken into record
3.1 THE JUVENILITY OF THE ACCUSED SHOULD BE DETERMINED ON THE

MENTAL MATURITY OF THE JUVENILE OFFENDER.
As submitted before the court the true test of juvenility is not in the age but in the
mental maturity of the offender. Under the penal section, accused juvenile from age 7
to 12 are also said to be judged on the level of their mental maturity.
The transition of a juvenile from boy to man is not a process that may occour
overnight, depending upon case to case and person to person there is a possibility that
the person must have become mature enough to understand what is right and what is
wrong.
Therefore contending that the juvenility should be determined on the mental maturity
of the juvenile offender15.
3.2 THE OSSIFICATION TEST SHOULD BE PREFERRED OVER THE

MARTICULATION CERTIFICATE TO DETERMINE THE AGE OF JUVENILE.
13
Salil bali vs union of india ors (2013) 7 SCC 705
14
Anil vs the state (2009)
15
Salil bali vs union of india ors (2013) 7 SCC 705
16
As submitted before the Hon’able court the bone ossification test is a step to
determine the age of a person by reading the bone tissue formulation. This process is
medically approved and accepted in the judicial system of our country. Whereas, the
matriculation certificate is a document that states the age of a person, such document
may also be obtained fraudulently or maybe incorrect.
Therefore, to determine the correct age of a juvenile person, ossification test is
preferred over matriculation certificate by the judicial system to determine the age of
juvenile16.
3.3 THE DETERMINATION OF PUNISHMENT OF THE JUVENILE SHOULD

DEPEND UPON THE NATURE OF OFFENCE COMMITTED.
As submitted before the court the determination of punishment of the juvenile shall
not depend upon the provisions of Act only but also upon the nature of offence
committed by the juvenile.
However, the Juvenile Justice Act is not intended to apply to serious or heinous
crimes committed by a juvenile.
The main focus of the Act is not on the crime committed but on the reasons that led
the juvenile to such conduct, the maximum punishment is sending the juvenile to
special hone for 3 years, however, if the same charges are imposed upon an adult, the
punishment for such grave offence would attract imprisonment for life or death.
Therefore, the Act is unjustified on the quantum of punishment for the nature of
offence committed by juvenile.
4. WHETHER THIS JUVENILE JUSTICE ACT, 2000 IS IN

As humbly submitted before the court, the present Juvenile Justice Act,2000 is made
in furtherance of the international norms to which Indica is signatory and in the light of those
norms the Act is also engraved upon provisions that are violating the articles of the
Constitution of Indica.
4.1 THE ACT IS IN CONTRAVENTION TO THE ARTICLE 14 OF THE

CONSTITUTION OF INDICA.
As submitted before the court the present Juvenile Justice Act,2000 offends article 14
of the constitution of Indica as all offenders below the age of 18 years irrespective of
the degree of mental maturity and irrespective of the gravity of the crime committed
would be treated at par regardless of the seriousness is wholly inadmissible under the
16
Deepak kumar vs state (2012)
17
Constitution. Also the bar imposed on section 7, on the jurisdiction of criminal court
to try juvenile offenders is also beyond the scope of the constitution of Indica17.
Therefore, the act is held to be in contravention to the article 14 of the Constitution of
Indica.
4.2 THE ACT IS IN CONTRAVENTION TO THE INTERNATIONAL NORMS.
The international commitments entered into by Indica are:

1. The UN Standard Minimum Rules for the Administration of Juvenile
Justice,(1985) (Beijing Rules)
2. The Convention of the Rights of the Child,1990 (CRC)
3. The UN Rules for the Protection of Juvenile Deprived of their Liberty, 1990
(Havana Rules)
The rules mentioned above obliges to set up a particular framework to deal with
juvenile offenders and therefore, such rules shall be met more comprehensively and
by way so that justice is done to the juvenile offender but the grave offences
committed by the juvenile should be tried in procedure to provide justice to the
offence victim.
However, in such international commitments there is a provision for exclusion of
those juvenile who has done grave offences and the international convections ensures
such juvenile to be prosecuted as adults and also grating discretion to transfer such
cases to ordinary court of law.
Under the Juvenile Justice Act, when section 28 is read with section 15,higher
punishments can be awarded to the juvenile as such sections are made in furtherance
of these international norms.
 17
Dr subramaniam swamy 2014 AIR (SC) 1694
18
PRAYER
In light of the issues raised, arguments advances and authority cited, may this Hon’ble Court
be pleased to:
1. The writ petition filed before the Hon’ble High Court of Bangla to be held
maintainable.
2. The Juvenile Justice Act, 2000, provides immunity on the juvenile offenders and
therefore be held void.
3. The juvenility of the offender is upon the mental maturity and therefore be tried in the
regular criminal court.
4. The juvenile justice act, 2000 is in contravention with the constitution of Indica and
international norms to which indica is signatory.
AND/OR
Pass any other order that it deems fit in the interest of Justice, Equity and Good Conscience.
And for this, the Appellant as in duty bound, shall humbly pray.
___________________________________________________________________________
COUNSELS ON BEHALF OF APPELLANTS

19

The 1st Mrinalini Devi Memorial National Moot Court Competition, 2017 Bengal Law College, Shantiniketan

Hochgeladen von

Dokumentinformationen

Originaltitel

Copyright

Verfügbare Formate

Dieses Dokument teilen

Dokument teilen oder einbetten

Freigabeoptionen

Stufen Sie dieses Dokument als nützlich ein?

Sind diese Inhalte unangemessen?

Copyright:

Verfügbare Formate

The 1st Mrinalini Devi Memorial National Moot Court Competition, 2017 Bengal Law College, Shantiniketan

Hochgeladen von

Copyright:

Verfügbare Formate

The 1st Mrinalini Devi Memorial National Moot Court Competition, 2017

Bengal Law College, Shantiniketan

BEFORE THE HIGH COURT OF BANGLA, INDICA

WRIT PETITION (CRL.) NO. 124 OF 2015

PEOPLES’ CONSCIENCE ………………APPELLANT

UNION OF INDICA AND ANR. ……………RESPONDENTS

MEMORIAL ON BEHALF OF THE APPELLANT

MEMORIAL ON BEHALF OF APPELLANT 1

List of Abbreviations……………………………………………………… Page 4

MEMORIAL ON BEHALF OF APPELLANT 2

SCC SUPREME COURT CASES

AIR ALL INDIA REPORTER

CRC CONVENTION OF THE RIGHTS OF THE CHILD,

SCR SUPREME COURT REPORTER

SCW SUPREME COURT WEEKLY

NGO NON-PROFIT ORGANISATION

MEMORIAL ON BEHALF OF APPELLANT 3

 Mithu vs state of Punjab 1983 AIR 473,1983 SCR (2) 690.

 Dadu vs state of Maharashtra (2000) 8 SCC 437

 Yeshwant S/O Natthuji Meshram vs State of Maharashtra AIR 1977 Bom 99

 Dayabhai Poonambhai Patel vs The Regional Transport Authority,1951

 Jitendra pani vs state of Orissa AIR 2010 SCW 2881

 Anil vs the state (2009)

 Salil bali vs union of india & ors (2013) 7 SCC 705

 Deepak kumar vs state (2012)

“226. Power of High Courts to issue certain writs-

MEMORIAL ON BEHALF OF APPELLANT 5

MEMORIAL ON BEHALF OF APPELLANT 6

MEMORIAL ON BEHALF OF APPELLANT 7

e. Incorporating the International concept of age of criminal responsibility and

MEMORIAL ON BEHALF OF APPELLANT 8

MEMORIAL ON BEHALF OF APPELLANT 9

ISSUES FOR CONSIDERATION

1. WHETHER THE WRIT PETITION FILED BEFORE THE HIGH COURT

2. WHETHER THE JUVENILE JUSTICE ACT PROVIDE BLANKET

3. WHETHER THE TRUE TEST OF JUVENILITY IS IN THE AGE OR

4. WHETHER THIS ACT (JUVENILE JUSTICE ACT) IS IN

MEMORIAL ON BEHALF OF APPELLANT

1. WHETHER THE PUBLIC INTEREST WRIT PETITION FILED BEFORE

2. WHETHER JUVENILE JUSTICE ACT PROVIDE BLANKET IMMUNITY ON

3. WHETHER THE TRUE TEST OF JUVENILITY IS IN THE AGE OR MENTAL

4. WHETHER THIS ACT (JUVENILE JUSTICE ACT) IS IN

MEMORIAL ON BEHALF OF APPELLANT

1. WHETHER THE PUBLIC INTEREST WRIT PETITION FILED BEFORE

1.1 JURISDICTION OF HIGH COURT UNDER ARTICLE 226 CAN BE

1.2 THE MATTERS MUST HOLD A SUBSTANTIAL QUESTION OF LAW

1.3 THE MATTER INVOLVES THE QUESTION OF PROTECTION OF PUBLIC

2. WHETHER JUVENILE JUSTICE ACT PROVIDE BLANKET

2.1. THIS ACT BANS THE JURISDICTION OF THE CRIMINAL COURT.

by a juvenile. The criminal judiciary system is constitutional and should apply to

2.2. THE ACT IS NOT INTENDED TO APPLY TO SERIOUS OR HEINOUS

2.3. THE CRITERION OF 18YEARS UNDER THE ACT DOES NOT

3. WHETHER THE TRUE TEST OF JUVENILITY IS IN THE AGE OR

3.1 THE JUVENILITY OF THE ACCUSED SHOULD BE DETERMINED ON THE

3.2 THE OSSIFICATION TEST SHOULD BE PREFERRED OVER THE

3.3 THE DETERMINATION OF PUNISHMENT OF THE JUVENILE SHOULD

4. WHETHER THIS JUVENILE JUSTICE ACT, 2000 IS IN

4.1 THE ACT IS IN CONTRAVENTION TO THE ARTICLE 14 OF THE

4.2 THE ACT IS IN CONTRAVENTION TO THE INTERNATIONAL NORMS.

The international commitments entered into by Indica are:

COUNSELS ON BEHALF OF APPELLANTS

MEMORIAL ON BEHALF OF APPELLANT

Das könnte Ihnen auch gefallen