The Supreme Court on Monday issued a notice to the Centre on a plea of the father of the December 16 gangrape victim that the juvenility of an accused needs to be ascertained by a criminal court and not by the Juvenile Justice Board.
A bench headed by Justice B S Chauhan also asked the women and child development ministry to file its response within four weeks on the issue of ascertaining the 'minority of an offender' in heinous cases.
It also sought the records including the statement of the victim that implicated the juvenile offender in the sensational case.
The victim's father has moved the apex court seeking directions to put one of the accused who was then a minor on trial by a criminal court by quashing a law that bans such prosecution of juveniles.
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 juvenile justice board in New Delhi.
The father of the victim, who had said the August 31 verdict of the Board was not acceptable to the family, has filed the petition in the apex court, saying since they are challenging the constitutional validity of the Juvenile Justice (Care and Protection of Children) Act 2000, 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 IPC".
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 Indian Penal Code 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 gangraped and brutally assaulted by six persons in a moving bus in 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.
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 sentence is before the Delhi High Court 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