The Centre on Monday told the Supreme Court that the law did not allow the juvenile, convicted by juvenile board in the December 16 gang rape, to be tried twice for the same offence as sought by the parents of victims who demanded his retrial by a criminal court.
The ministry of women and child development said it would be legally and constitutionally impermissible to put him on trial again as the Juvenile Justice Board has already given its verdict of guilt of the juvenile and the prayer for his fresh trial has been rendered redundant.
"As such, under Article 20 of the Constitution as also Section 300 of criminal procedure code, there can be no second trial for the same offence, and the adjudication of guilt of the juvenile offender having been determined by the JJB under Juvenile Justice (Care and Protection of Children) Act, 2000, the second prayer does not survive nor was sustainable," the ministry said in its affidavit.
The ministry's reply came on a plea filed by the father of the December 16 gang rape victim that the juvenility of an accused needs to be ascertained by a criminal court and not by the JJB.
The issue came up for hearing before a bench headed by Justice B S Chauhan, which tagged the petition filed by victim's parents with the plea of Bharatiya Janata Party leader Subramanian Swamy who has also sought fresh interpretation of the term juvenile.
Swamy has also contended that the Juvenile Justice (Care and Protection of Children) Act provides for a "straitjacket" interpretation of the term 'juvenile' that a person below the age of 18 years is a minor and it was in violation of the United Nations Convention for the Rights of the Child and Beijing Rules on the issue.
The UNCRC and Beijing Rules say the presumption of "the age of criminal responsibility" be fixed while "bearing in mind the mental and intellectual maturity" of offender, he has said.
Raising the identical issue, the victim's father had said the August 31, 2013 verdict of the Board was not acceptable to the family so they are challenging the constitutional validity of the Juvenile Justice (Care and Protection of Children) Act 2000, as there is no other authority concerned to which they can approach for such relief.
The victim's father has sought a direction to declare "as unconstitutional and void the Juvenile Justice (Care and Protection of Children) Act 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 Indian Penal Code".
The petition filed through advocate Aman Hingorani said the juvenile "is liable to be tried and punished by the criminal courts for the aforesaid offences, complete with the
judicial discretion on established principles of law regarding the award of sentence keeping in view, amongst other factors, the nature and gravity of the offence".
The petition referred to the trial court verdict by which four adult accused were convicted and sentenced to death and sought similar trial for the then juvenile offender, who has now turned major.
"One of the accused (Respondent No 2 -- juvenile), however, has not been tried at all for the offences committed under the IPC by the criminal court on the premise that he is a juvenile in conflict with law aged 17 years," the petition, in which the Centre and the accused have been named as respondents, said.
It also stated that "the blanket protection to juvenile offenders from being tried by the criminal courts for offences under the IPC, is an instance of legislative adjudication, and hence unconstitutional".
On the night of December 16, 2012, the girl was gang-raped and brutally assaulted by six persons in a moving bus in New Delhi. One among them was the juvenile, so he was tried by the board.
The victim succumbed to her injuries in a Singapore hospital on December 29, last year.
A provision of the JJA says "'juvenile' or 'child' means a person who has not completed eighteenth year of age."
The juvenile, who was six months short of 18 years at the time of incident, was convicted for gangrape and murder of the 23-year-old girl but he got away with a maximum of three years imprisonment mandated under the juvenile law by the JJB.
The four adult accused -- Akshay Thakur, Vinay Sharma, Pawan Gupta and Mukesh -- were tried by a fast-track court which awarded them death penalty. Now the Delhi high court has kept its order reserved for confirmation.
Another accused Ram Singh was found dead on March 11 in his cell in Tihar Jail and the trial against him had been abated.