Memorials for Reference in Moot Court Competitions, Schemes and Mind Maps of Law

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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

INDEX OF AUTHORITIES

INDIAN CASES

 Ganga Kumar Srivastava v. State of Bihar (2005) 6 SCC 211.  State of Punjab v. Balbir Singh 1994 (3) SCC 299.  Krishna Kanwar v. State of Rajasthan, (2004) 2 SCC 608  M. Prabhulal v. Directorate of Revenue Intelligence, (2003) 8 SCC 449.  Chhunna v. State of M.P (2002) 9 SCC 363.  Kishan Chand v. State of Haryana (2013) 2 SCC 502. FOREIGN CASES: - STATUTES REFERRED: -  The Constitution of India, 1950.  The Code of Civil Procedure, 1908.  The Code of Criminal Procedure, 1973.  The Indian Penal Code, 1860.  The Juvenile Justice Act, 2015 LEGAL DICTIONARIES:  Aiyer P.R., Advanced Law Lexicon, (3rd ed., 2005).  Garner B.A., Black’s Law Dictionary, (9th ed., 2009).  Greenberg Daniel, Stroud’s Judicial Dictionary of Words and Phrases, (4th ed.), Sweet and Maxwell, Vol. 4.  Mish F.C., Merriam-Webster's Collegiate Dictionary, (11th ed. 2003). BOOKS REFERRED: -  Dr. J.N. Pandey, Dr. Surendra Sahai Srivastava (ed.), Constitutional Law of India (Central Law Agency)  Dr. Narendra Kumar, Constitutional Law of India (Allahabad Law Agency, 9th Edition, Re. 2016)  K.D. Gaur, Textbook on I.P.C. (Universal Law Publications, 6th Edition, 2016)  P.S.A. Pillai, Dr. K. I. Vibhute, Criminal Law (Lexis Nexis, 12th Edition, Re. 2016).  Ratan Lal & Dhiraj Lal, I.P.C. (Lexis Nexis, Nagpur, 30th ED., 2008)

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

STATEMENT OF ISSUES

ISSUE 1

The counsel for the Petitioners most respectfully showeth THEREBY THE PETITIONERS SUBMIT THIS PETITION WHICH SETS FORTH THE FACTS AND THE LAWS ON WHICH THE CLAIMS ARE BASED 5 | M E M O R I A L F O R P E T I T I O N E R

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.

4. CAN THE FIR REGISTERED AGAINST THE ACCUSED BE QUASHED IN

AFORESAID FACTS AND CIRCUMSTANCES OF THE CASE?

 Quashing the FIR is sought, contending that an unfair NDPS case investigation undermines the constitutionally guaranteed fair trial (Article 21).  Stresses the potential bias when the investigating officer is also the complainant, emphasizing the need for an impartial process to uphold the accused's rights.  Argues that compliance with Sec. 42 of the NDPS Act is crucial to protect suspects against false implication, as failure may vitiate the search and trial, compromising the right to a fair investigation and trial under Article 21.

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.

The Supreme Court at numerous occasions has held the following with regard to Section 42 of the Act:  Compliances under Section 42 of the Act are mandatory in nature.^11  Non-compliance with the conditions contained therein can lead to serious repercussions such as vitiation of the search conducted and the trial held.^12  The purpose of this provision is to provide due protection to a suspect against false implication.^13 In the instant case, the procedure for search and seizure has not been in compliance with Sec 42 and Sec 50 the NDPS Act, 1985 and the prosecution has vitiated the trial proceedings from the beginning. The fact that the High Court of Rangena has not taken into consideration of the material facts for the quashing of First Information Report under Sec 482, Cr.P.C invites the attention of this Hon’ble Court to exercise powers under Art 136. S U B S T A N T I A L V I O L A T I O N O F R U L E O F L A W In the instant case, the impugned legislation (The Juvenile Justice (Amendment) Act, 2021) deviates from the basic principles of Rule of Law by violating the fundamental rights guaranteed in the Constitution. The impugned legislation codifies manifest arbitrariness, chauvinistic notions of family and breaches the innermost zone of privacy by criminalising the act of adultery. 1.2.1 In the instant case, prima facie , the categorisation of ‘serious offences’ from ‘cognisable’ to non-cognisable is manifestly arbitrary and violative of the guiding principles for the administration of JJ Act, 2015, which are enshrined in Chapter 2, Section 3^14 of the Act. The said principles are as follows:  Principle of presumption of Innocence  Principle of dignity and worth  Principle of participation  Principle of best interest  Principle of family responsibility (^11) M. Prabhulal v. Directorate of Revenue Intelligence , (2003) 8 SCC 449. (^12) Chhunna v. State of M.P (2002) 9 SCC 363. (^13) Kishan Chand v. State of Haryana (2013) 2 SCC 502. (^14) The Juvenile Justice (Care and Protection of Children) Act, 2015 – sec 3.

 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).

2. WHETHER THE ‘PRELIMINARY ASSESSMENT’ CONDUCTED UNDER

SECTION 15 OF THE JUVENILE JUSTICE ACT, 2015 IS VIOLATIVE OF

ARTICLE 20 (3) OF THE CONSTITUTION?

2.1 It is humbly submitted that the ‘ 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) 2.2 JURISPRUDENTIAL BACKGROUND OF PUNISHMENT AND PRESUMPTION OF GUILT: A satisfactory definition of crime embraces many acts and omissions, which are criminal and which will at the same time extrude all those acts and emissions which are not.^18 Ordinarily, crime is a wrong which affects the security or well-being of the public, generally, so that the public has an interest in its suppression. A crime is frequently a moral wrong in that it amounts to conduct which is inimical to the general moral sense of the community.^19

1. An act may be prohibited or commanded by a statute in such a manner that the person contravening the provision is liable to a pecuniary penalty which is recoverable as a civil debt. In other words, an act prohibited or commanded by a statute constitutes a criminal liability if the person contravening the provision is liable to a penalty which is irrecoverable as a civil debt.^20
2. Section 2(35) of the Juvenile justice act 2015 define Juvenile as a child below the age of 18 years, inter fitting the word Juvenile literally imply that person who has not completed the age of 18 years shall be construed as a juvenile. alternatively, a person who has completed the age of 18 years shall not be construed as a juvenile.
3. The social context of the passing of the said act by the Legislature is a pivotal importance understanding the purpose and intent of the act. Juvenile delinquency is a major sociological problem and reformative (^18) Mann v. Owen (1829) 9 B&C 595. (^19) Sherras v. De Rutzen (1895) 1 QB 918. (^20) Brown v. Allweather Mechanical Grouting Co. Ltd. (1954) 2 QB 443

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.

4. 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/

Para 3. …the questionnaire at Sl. Nos. 42 and 43 in Form No. 6 which relates to preparation of Social Investigation Report (in short SIR) for children in conflict with law under Section 8 of the Juvenile Justice (Care and Protection) ofChildren Act (in short, the J.J. Act) is incorrect as a presumption is raised at the pre-trial stage itself that the child has committed the offence for the reason it note in Sl. No. 42. Para 4. Learned counsel appearing on behalf of the NGO/HAQ, Intervener in the CRL.Ref 3/2016 has placed before us, a copy of the preliminary assessment report prepared by a psychologist in the format supplied by the Department. Under Clause 3 of the said report, it can be clearly noted that a confession is sought to be extracted from the child as to the manner in which the offence was committed and the reasons thereof This manner of seeking a confession from the child is unconstitutional and beyond the scope of a report of. preliminary assessment to be prepared under Section 15 of the J.J. Act. ..." Therefore, the preliminary assessment is not a tool or the process to extract confession. It would be a miscarriage of justice and violative of constitutionally recognised principles to do so. It must further be noted that since it is not a trial, few principles immediately emerge. They are: a. The Preliminary Assessment cannot be a tool to make comments, or draw conclusions or inference about the merits of the case or the guilt of the child. b. There cannot be an adversarial approach from the State, and the prosecutor. Any such approach adopted would defeat the purpose, contradictory to the section 15 of the JJ Act, and repeated clarifications from different High Courts. c. Limited reliance on prosecution documents: The Board can rely on the First Information Report (FIR) and the Preliminary Inquiry Report (PIR) only to the limited extent that they enable the Boards to examine whether the offence alleged is of heinous nature so as to decide the very applicability of the section 15 of the JJ Act.

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

another two pronged issue that haunts such Preliminary Assessment in eyes of Sec. 3, and that is, a) severe backlog of cases in the JJB, and b) a lack of qualified psychologists^37. A D D R E S S I N G T H E R U L E S - S T A N D A R D D I C H O T O M Y 3.2.2 The dichotomy between Rules and Standard is problematic in India, as India is a Rule-based society^38. this is because there are many provisions that allow for a child or a minor who is a potential Juvenile delinquent to bypass the liability under the law. Exceptions prove the rule and to achieve justice as it protects — a majority of the minor population who are not sufficiently mature enough. The law even recognises this mental immaturity and minors’ contracts, for instance, are treated as void, and incapable of enforcement^39. Opting for standard legal elements such as "good faith," "mala fide," and "reasonableness" introduces the challenge of subjective interpretations. A potential solution to this dichotomy may lie in advocating for flexible rules that allow for sufficient discretion, coupled with limited exceptions subject to preventive screening, such as life imprisonment with hard labor—an essentially preventive measure. From an economic analysis perspective, criminal law operates on the premise that human beings are rational decision-makers who assess the cost and benefit of their actions. Criminal law imposes an adequate cost or disutility, in the form of punishment, for the volitional acts of rational individuals. All human beings are born free and equal in dignity and rights, endowed with reason and conscience^40. If this declaration holds true, a separate convention for children might be unnecessary. Children, as a distinct constitutional class, are often victims of circumstances that shape their destinies. They lack autonomy in the sense of following intentionalist discourse, and their choices (^37) NCRB Table A (n 102); NCRB Table B (n 102); Elsie Mishra and Ramakrishna Biswalat, ‘ Reducing the Age of Criminal Responsibility of Juvenile- A Necessary or Un-Necessary Step? ’ (2018) 3 (3) International Journal of Legal Research and Studies 31-38 (^38) Lloyd's Introduction to Jurisprudence , Seventh Edition, Sweet and Maxwell p.1041. (^39) Mohori Bibee v. Dharmodas Ghose, 1903 SCC OnLine PC 4 (^40) Universal Declaration of Human Rights, Article 1

are not inherently reasoned or free, warranting a more considerate approach that avoids harsh disutility. 3.3 Furthermore, another criticism of the Preliminary Assessment is the manner in which it defines maturity. Under the present provisions, the Juvenile Justice Board (‘JJB’) may, based on a preliminary assessment, decide to try the accused as an adult. However, empirical research in child psychology suggests that there is no clear manner in which the level of maturity of a CCL can be clearly determined^41. In essence, the Juvenile Justice Board (JJB) starts without a scientific foundation for its initial assessment. This conveys that the inclination to treat Children in Conflict with Law (CCL) as adults is based on an incorrect presumption that there exist reliable mechanisms for appraising the maturity of a CCL. 3.4 Another aspect is the absolute lack of procedural safeguards to CCL within the age of sixteen to eighteen years. In addition to the absence of a scientific foundation for the initial assessment of maturity, the legislation lacks procedural safeguards mandating an elevated threshold of proof for trying Children in Conflict with Law (CCL) as adults. This is an absolute necessity within the current framework due to the normative differences that exist between CCL and adults^42. Further, some academic scholarship suggests that JJBs, in parts of the country, have trouble in seamlessly transferring the child to the Children's Court, which may be located at a distance from the JJB. This is because, in practice, there is no real difference between a child court and a regular criminal court, [ UN Committee (n 59) 20, 21.] and the purely adversarial nature of such proceedings coupled with harsher sentences and the retention of a criminal record can drastically reduce the scope of reformation and rehabilitation. (^41) Rajya Sabha Report (n 29) 21; Centre for Child and the Law, ‘ Critique of the Juvenile Justice (Care and Protection of Children) Bill, 2014 ’ (6 May 2015) 22 (‘CCL-NLS Report’). (^42) Brink (n 9) 4

ISSUE 4

4. WHETHER THE CRIMINAL LAW (AMENDMENT) ACT, 2022 IS IN

VIOLATION OF PRINCIPLES OF EQUALITY?

4.1 It is humbly submitted that the FIR against the accused be quashed in aforesaid facts and circumstances of the case on the following grounds. A fair trial to an accused, a constitutional guarantee under Article 21 of the Constitution, would be a hollow promise if the investigation in an NDPS case were not to be fair or raises serious questions about its fairness apparent on the face of the investigation. In the nature of the reverse burden of proof, the onus will lie on the prosecution to demonstrate on the face of it that the investigation was fair, judicious with no circumstances that may raise doubts about its veracity. The obligation of proof beyond reasonable doubt will take within its ambit a fair investigation, in the absence of which there can be no fair trial. If the investigation itself is

unfair, to require the accused to demonstrate prejudice will be fraught with danger vesting arbitrary powers in the police which may well lead to false implication also. Investigation in such a case would then become an empty formality and a farce. Such an interpretation therefore naturally has to be avoided.^43 The investigation into a criminal offence must be free from objectionable features or infirmities which may legitimately lead to a grievance on the part of the accused that investigation was unfair and carried out with an ulterior motive. It is also the duty of the investigating officer to conduct the investigation avoiding any kind of mischief and harassment to any of the accused. The investigating officer should be fair and conscious so as to rule out any possibility of fabrication of evidence and his impartial conduct must dispel any suspicion as to its genuineness. The investigating officer ‘is not merely to bolster up a prosecution case with such evidence as may enable the court to record a conviction but to bring out the real unvarnished truth.^44 In State of Bihar v. P.P. Sharma ,^45 this Court has held as under: (SCC pp. 263-65, paras 57, 59 & 61) ‘57. … Investigation is a delicate painstaking and dextrous process. Ethical conduct is absolutely essential for investigative professionalism. … Therefore, before countenancing such allegations of mala fides or bias it is salutary and an onerous duty and responsibility of the court, not only to insist upon making specific and definite allegations of personal animosity against the investigating officer at the start of the investigation but also must insist to establish and prove them from the facts and circumstances to the satisfaction of the court. In the instant case, it is submitted that PSI, being the complainant, himself would be an interested person and should not have been made the investigating officer.^46 In a catena of cases, the Supreme Court has held that there is no principle or binding authority to hold that the moment the competent police officer, on the basis of information received, makes out an FIR incorporating his name as the informant, he forfeits his right to investigate.^47 If at all, such investigation could only be assailed on the ground of bias or real likelihood of bias on the part of the investigating officer.^48 The question of bias would depend on the facts and (^43) Mohan Lal v. State of Punjab (2018) 17 SCC 627. (^44) Babubhai v. State of Gujarat, (2010) 12 SCC 254 (^45) State of Bihar v. P.P. Sharma 1992 Supp (1) SCC 222 : 1992 SCC (Cri) 192. (^46) Hardip Singh v. State of Punjab (2008) 8 SCC 557. (^47) State v. V. Jayapaul (2004) 5 SCC 223. (^48) State of Punjab v. Baldev Singh (1999) 6 SCC 369.

circumstances of each case and it is not proper to lay down a broad and unqualified proposition, in the manner in which it has been done by the High Court, that whenever a police officer proceeds to investigate after registering the FIR on his own, the investigation would necessarily be unfair or biased.^49 In the instant case, the prosecution was under the NDPS Act. There was no independent witness. In a case of this nature, when the complainant himself is a Police Official, the investigation should have been conducted by his top-ranking officer and the final report also ought to have been filed by the higher official.^50 A complainant being a police officer cannot be an investigating officer. For, in such case, the accused and the prosecution will be deprived of their valuable rights of contradicting and corroborating, the previous information recorded under Section 154 or 155 CrPC and previous statement of the witness, being a police officer, complaint recorded, under Section 161 CrPC enjoined in Sections 145 and 157 of the Evidence Act and proviso of Section 162 CrPC, thus committing an incurable infirmity and flaw by the prosecution, quite against the proposition of law. The brief description of procedure is enshrined under Sec. 42^51 , and Sec. 50^52 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^53 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: (^49) Megha Singh v. State of Haryana (1996) 11 SCC 709. (^50) Naushad v. State of Kerala 2000 SCC OnLine Ker 365. (^51) Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985 – sec 42. (^52) Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985 – sec 50. (^53) State of Punjab v. Balbir Singh 1994 (3) SCC 299.