juvenile justice
DESCRIPTION
JJ ACTTRANSCRIPT
jamia millia islamia
Juvenile Justice Act
Changing Dimensions!
Sharique Raza
5th Year
SEMINAR ASSIGNMENT
ACKNOWLEDGEMENT
At the outset, I would like to thank my seminar teacher, Dr. Asad Malik, for being a
guiding force throughout the course of this submission and being instrumental in the
successful completion of this project report without which my efforts would have been in
vain.
I am thankful to the Librarians, Faculty of Law, Jamia Millia Islamia for helping me in
collecting the relevant material for my project report.
I would like to extend my sincere thanks to my friends and family for their constant
review and honest remarks.
SHARIQUE RAZA
B.A.LL.B (HONS) 5TH YEAR
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Table of Contents
ACKNOWLEDGE MENT 2
CONTENT 3
LIST OF CASES 6
ABBREVIATION 8
ABSTRACT 9
CHAPTER-I INTRODUCTION
1.1 INTRODUCTION 10
1.2 OBJECTIVE OF THE STUDY 17
1.3 HYPOTHESIS 17
1.4 CONCEPTUAL FRAMEWORK 17
1.5 SIGNIFICANCE OF STUDY 19
1.6 RESEARCH METHODOLOGY 19
CHAPTER -2 LITERATURE REVIEW
2.1 INTRODUCTION 21
2.2 FACTORS UNDELYING JUVENILE DELIQUENCY 22
2.3 PERCEPTIONS OF FAIRNESS 23
2.4 POSITIVE YOUTH DEVELOPMENT 23
2.5 CONCLUSION 25
CHAPTER-3
3.1 INTRODUCTION 26
3.2 HISTORY OF JUVENILE LEGISLATION 27
3.3 WHO IS A JUVENILE 30
3.4 INTEWRNATIONAL SCENARIO 33
3.5 PROVISON RELATED TO THE CHILDREN IN CONSTITUTION 35
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3.6 RETROSPECTIVE LEGISLATION 37
3.7 OVERRIDING EFFECT OF JUVENILE LEGISLATION 38
CHAPTER 4: AGE DETERMINATION
4.1 AGE OF CR5IMNAL RESPONSAIBILITY 40
4.2 DETERMINATION OF AGE 41
CHAPTER 5 : JUVENILE JUSTICE BOARD AND CRIMNAL PROCEEDING 47
5.1 PRODUCTION BEFORE JJB 50
5.2 INQUIRY PROCEDURE BEFORE JJB 51
5.3 APPREHENSION 54
5.4 BAIL 56
5.5 APPEAL 59
5.6 REVISION 60
CHAPTER 6: POWER OF COURT
6.1 POWERS OF THE HIGH COURT AND SESSIONS COURT UNDER JUVENILE LEGISLATION 61
6.2 JUDGMENTS 61
CHAPTER 7 : THE LOGICAL PROBLEMS WITH THE JUVENILE JUSTICE ACT IN INDIA 73
CHAPTER 8 : NEED TO AMEND THE JUVENILE JUSTICE LAW IN INDIA: POST THE DELHI GANG RAPE CASE 76
CHAPTER 9 : THE JUVENILE BILL 2014/2015 81
CDHAPTER 10 : CONCLUSION 86
EMPIRICAL RESEARCH 87
METHOD OF STUDY AND RESULT CASE STUDY DISSCUSSION AND CONCLUSION QUESTIONNAIRE
Bibliography 125
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List of Cases
Arnit Das vs. State of Bihar: (2000) 5 SCC 488; 2000 SCC (Cri) 962; AIR 2000 SC
2264; 2000 CriLJ 2971 (SC).
BabanKhandu Rajput vs. State of Maharashtra: 2002 AllMR(Cri) 1373.
BholaBhagat vs. State of Bihar: (1997) 8 SCC 720; AIR 1998 SC 236.
BholaBhagatVs. State Of Bihar: (1997) 8 Scc 720; Air 1998 Sc 236.
Bhoop Ram vs. State of U.P.: (1989) 3 SCC 1; 1989 SCC (Cri) 486; AIR 1989 SC 1329;
(1989) 2 Crimes 294.
Dattatray G. Sankhe vs. State of Maharashtra &Ors. : 2003 AllMR(Cri) 1693 (Bombay);
Dilip K. Basu vs. State of West Bengal &Ors.: (1997) 1 SCC 416; 1997 SCC (Cri) 92;
AIR 1997 SC 610.
GopinathGhosh vs. State of West Bengal: 1984 SCC (Cri) 478; AIR 1984 SC 237; 1984
CriLJ 168 (SC).
GopinathGhosh Vs. State Of West Bengal: 1984 SuppScc 228; 1984 Scc (Cri) 478; Air
1984 Sc 237; 1984 Crilj 168 (Sc).
Jaya Mala Vs. Home Secretary, Government Of Jammu & Kashmir: (1982) 2 Scc 538;
1982 Scc (Cri) 502; Air 1982 Sc 1297; 1982 Crilj 1777 (Sc).
Jaya Mala vs. Home Secretary, Govt. of J&K: (1982) 2 SCC 538; AIR 1982 SC 1297;
1982 CriLJ 1777(SC).
Jayendra&Anr. vs. State of Uttar Pradesh : (1981) 4 SCC 149; 1981 SCC (Cri) 809; AIR
1982 SC 685.
Kalyan Chandra SarkarVs. Rajesh Ranjan: (2005) 2 Scc 42; 2005 Scc (Cri) 489; Air
2005 Sc 921; 2005 Crilj 944 (S.C.).
Master Rajeev ShankarlalParmar&Anr. Vs. Officer-In-Charge, Malad Police Station
&Ors: 2003 Crilj 4522 (Bom).
Master SalimIkramuddin Ansari &Anr. Vs. Officer-In-Charge, Borivali Police Station,
Mumbai &Ors: 2005 Crilj 799 (Bom).
Om PrakashVs. State Of Uttaranchal: (2003) 1 Scc 648.
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Pradeep Kumar Vs. State Of U.P: 1995 Supp (4) Scc 419; 1995 Scc (Cri) 395; Air 1994
Sc 104.
Pradeep Kumar vs. State of Uttar Pradesh: 1995 Supp(4) SCC 419; 1995 SCC (Cri) 395;
AIR 1994 SC 104.
Pratap Singh vs. State of Jharkhand &Ors.: AIR 2005 SC 2731; 2005 CriLJ 3091 (SC)
Prerna vs. State of Maharashtra &Ors.: Criminal Writ Petition No.1694 of 2003.
Rahul Mishra vs. State of M.P.: 2001 CriLJ 214 (M.P.).
Raisul vs. State of U.P.: (1976) 4 SCC 301; 1976 SCC (Cri) 613; AIR 1977 SC 1822;
1977 CriLJ 1555 (SC).
Raj Singh vs. State of Haryana: (2000) 6 SSC 759; 2000 SCC (Cri) 1270.
Rajinder Chandra Vs. State Of Chhatisgarh&Anr: (2002) 2 Scc 287; Air 2002 Sc 748;
2002 Crilj 1014 (Sc).
Rajinder Chandra vs. State of Chhattisgarh: (2002) 2 SCC 287; AIR 2002 SC 748; 2002
CriLJ 1014 (SC).
Ram DeoChauhanVs. State Of Assam: (2001) 5 Scc 714; Air 2001 Sc 2231.
Ranjit Singh vs. State of H.P.: 2005 CriLJ 972 (H.P.).
Ravinder Singh GorkhiVs. State Of U.P: (2006) 5 Scc 584; 2006 Crilj 2791 (Sc).
Sahabuddin Alias ShabooVs. State Of U.P.: 2002 Crilj 4579 (Allahabad).
Sanjay Suri&Anr. Vs. Delhi Administration, Delhi &Anr: 1988 SuppScc 160; 1988 Scc
(Cri) 248; Air 1988 Sc 414; 1988 Crilj 705 (Sc).
Satya Mohan Singh Vs. State Of U.P.: (2005) 11 Scc 395.
Satya Mohan Singh vs. State of Uttar Pradesh: (2005) 11 SCC 395.
SheelaBarse vs. Union of India: (1986) 3 SCC 632; (1986) SCC (Cri) 352; 1986 CriLJ
1736 (SC).
Smt. Kamlesh&Anr. vs. State of U.P. : 2002 CriLJ 3680 (Allahabad).
State Of Karnataka Vs. Harshad: 2005 Crilj 2357 (Karnataka).
Sunil RathiVs. State Of U.P: (2006) 9 Scc 603; (2006) 3 Scc (Cri) 351.
Surinder Singh vs. State of U.P.: (2003) 10 SCC 26; 2004 SCC (Cri) 717; AIR 2003 SC
3811.
Surinder Singh Vs. State Of U.P.: (2003) 10 Scc 26; 2004 Scc (Cri) 717; Air 2003 Sc
3811.
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Umesh Chandra vs. State of Rajasthan : (1982) 2 SCC 202; 1982 SCC (Cri) 396; AIR
1982 SC 1057; 1982 CriLJ 994 (SC).
Umesh Singh &Anr. vs. State of Bihar : 2000 SCC (Cri) 1026; AIR 2000 SC 2111; 2000
CriLJ 3167 (SC).
Umesh Singh &Anr. Vs. State Of Bihar: (2000) 6 Scc 89; 2000 Scc (Cri) 1026; Air 2000
Sc 2111; 2000 Crilj 3167 (Sc).
Upendra Kumar vs. State of Bihar: (2005) 3 SCC 592; 2005 SCC (Cri) 778.
Upendra Kumar Vs. State Of Bihar: (2005) 3 Scc 592; 2005 Scc (Cri) 778.
Vijendra Kumar Mali, etc. vs. State of U.P.: 2003 CriLJ 4619 (Allahabad).
Vijendra Kumar Mali, Etc. Vs. Stateof U.P.: 2003 Crilj 4619 (Allahabad).
Vikky alias Vikram Singh vs. State of U.P.: 2003 CriLJ 3457 (Allahabad);
LIST OF ABBREVIATIONS
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Anr.:Another
APP:Additional Public Prosecutor
BCA:The Bombay Children Act
CAS:Children’s Aid Society
CRC: The United Nations Convention on the Rights of the Child
CrPC: Criminal Procedure Code
CWC: Child Welfare Committee
IPC: Indian Penal Code
JJA: The Juvenile Justice Act 1986
JJA: The Juvenile Justice (Care2000 and Protection of Children)Act 2000
JJB: Juvenile Justice Board
NGO: Non-Governmental Organisation
Ors.: Others
PO: Probation Officer
PP: Public Prosecutor
SIR: Social Investigation Report
SJPU: Special Juvenile Police Unit
TIP: Test Identification Parade
UOI: Union of India
ABSTRACT
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This study was aimed at understanding the causes behind juvenile delinquency, and the
measures that are being taken for the positive development of the children in conflict with
law. The influence of the media on the psychosocial development of children is profound.
With advent of communication technology in recent times, a child’s exposure to media
including television, radio, music, video games and the Internet, has increased manifold.
Therefore, it was planned to study whether the impact of recent changes in the society on
juvenile delinquency is significant. The socio-economic profile, factors behind the
delinquency, the rehabilitative mechanisms and its effectiveness were analyzed by using
the primary data collected by interviewing 50 inmates of the Government Observation
Home of Ujjawal childrens for boys, Lajpat Nagar, New Delhi and Uday Children
Homes for boy Lajpat Nagar,New Delhi.Out of these 50 cases of delinquency, 5 cases of
offence were also analyzed in detail using case study method. The data was collected by
using the structured questionnaire and interview. The results indicated that the offences
made by the delinquents were primarily due to the combination of various individual and
environmental variables, viz. individual risk factors of the delinquents, negligence and
ignorance of the parents, peer influence, poor socio-economic status, family pressure and
lack of proper socialization. Direct impact of media was not pronounced in the findings
of the study, excepting a few cases of theft. Overall, the perception regarding fairness of
justice, both before and after the offence, was reported to be positive by the respondents.
The results also indicated that owing to lack of funds and resources, the positive
development measures for the juveniles were conspicuous by their absence. Findings
were interpreted in the light of current conceptualizations in the area of the study and
their implications for future were pointed out.
CHAPTER-1 INTRODUCTION
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1.1NTRODUCTION
A child is born innocent and if nurtured with tender care and attention, then he/she
grows in positive way. Physical, mental, moral and spiritual development of the children
makes them capable of realizing his/her fullest potential. On the contrary, harmful
surroundings, negligence of basic needs, wrong company and other abuses may turn a
child to a delinquent. With changing societal trends, children now appear to possess
strong likes and dislikes and also show expressions that indicate maturity at a very early
age. These qualities also make children more vulnerable to the designs of the criminality
such as abusers, peddlers, and traffickers. Moreover, the influence of the media on the
psychosocial development of children is profound. With advent of communication
technology in recent times, a child’s exposure to media including television, radio, music,
video games and the Internet, has increased manifold. Children constitute about 40% of
India’s population and India has a National Policy for Children declaring children to be a
national asset. Even so majority of India’s children continue to be in difficult
circumstances. India has signed the UN Convention on the Rights of the Child and
obligated itself to work towards ensuring all the rights enshrined therein to all its
children. India has witnessed an increase both in crimes committed by children and those
committed against them. There has been 97.9% increase in crimes committed by children
between 2003 and 2004, with more children being appeared for arson, theft and cheating.
Over 33,000 juveniles, mostly between the age group of 16 to 18, have been arrested for
crimes like rape and murder across Indian states in 2011, the highest in last decade.
According to a Home Ministry data, of the total of 33,387 juveniles apprehended in 2011,
21,657 were in the 16-18 age group, 11,019 of 12-16 age group and 1,211 between 7-12
age group (PTI, 2013).Whereas, 32,145 such youngsters below 18 years of age were held
in 2006, 34,527 in 2007, 34,507 in 2008, 33,642 in 2009 and 30,303 during 2010, the
data said. The data also shows increasing cases of rape by juveniles. As many as 1,419
such cases were recorded in 2011 as compared to 399 cases in 2001, it said. It is pertinent
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to mention that a juvenile and five others were arrested by Delhi Police for brutally
raping and assaulting a 23-year-old girl in the national capital on December 16, 2012.
The victim later succumbed to her injuries. 3 The cases of murder by juveniles have also
shown a surge in last ten years. As many as 531 youngsters below the age of 18 were
apprehended for murder in 2001 as against 888 arrests between January and December
2011. According to the data, 6,770 juveniles were arrested in Maharashtra, 5,794 in
Madhya Pradesh, 2,692 in Chhattisgarh, 2,542 in Rajasthan and 2,510 in Gujarat among
others in 2011. In the same year, a total of 2,474 adolescents were arrested in Andhra
Pradesh, 2,083 in Tamil Nadu, 1,204 in Uttar Pradesh and 1,126 in Bihar, the data said.
Of the total number of juveniles arrested in 2011 under different sections of IPC and
Special and Local Laws (SLL), 6,122 were illiterate, 12,803 were primary pass outs,
10,519 were above primary and below matriculation qualified and 4,443 were metric and
higher secondary qualified, the data said. A total of 27,577 juveniles, who were held for
criminal acts, were living with parents, 4,386 were living with guardians and 1,924 were
homeless, the data said giving details of their family background. Therefore, it is
imperative to understand the concept of juvenile delinquency and delineate the conditions
giving rise to high rates of crimes and conflicts with law.
Juvenile Delinquency
The word juvenile has been derived from the Latin term juvenis, which means young and
etymologically, and the word delinquency has been derived from the Latin word
delinquer which means to omit. In the year 1484, William Coxton used the word
delinquent to describe a person who was found guilty. Juvenile delinquency refers to the
involvement by the teenagers in an unlawful behavior who is usually under the age of 18
and commits an act which would be considered as a crime. A child is known as a
delinquent when he/she commits a mistake which is against the law and which is not
accepted by the society. Thus a “juvenile” or “child” means a person who has not
completed eighteenth years of age and violates the law and commits an offence under the
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legal age of maturity. Since the human civilization, crime has been one of the dominant
problem which occurs when someone breaks the law by an explicit act, omission or
neglect that can result in punishment. A child is born innocent, but due to the unhealthy
environment, negligence of the basic necessities and wrong company, a child may turn
into a delinquent. Usually somebody has to have intent to break the law in order to
commit a crime, but that is not always the case. A person can be charged with a crime
even if that person doesn’t know the 4 law even exists. The phrase “ignorance of the law
is no exception” means that a person can be held responsible even when he or she break a
law which they don’t know. Therefore, juveniles, given the benefit of doubt regarding
ignorance of law, are generally treated differently in the criminal justice system. A crime
can be defined as a harmful act or omission against the public which the state wishes to
prevent and which, upon conviction, is punishable with a fine, imprisonment, and/or
death. No conduct constitutes a crime unless it is declared as criminal in the laws of the
country. Some crimes such as theft or criminal damage may be civil wrongs for which the
victim may claim damages in compensation. Delinquent and criminal behavior may
abound among young people, as they negotiate the transition from childhood to
adulthood in an increasingly complex and confusing world. A child is a part of the
society in which he lives and the social relations that ensure a smooth process of
socialization are collapsing. The traditional patterns of relationships guiding transitions
between the family, school, and work are collapsing now-a-days for many young people.
Lifestyle is becoming more varied and less predictable. Now-a-days many youths
regardless of gender, social origin, are subject to individual risks. Many a times
advantage is taken of the tempting opportunities and young people commit various
offences becoming addicted to drugs, and using violence against their peers. To
criminologists, juvenile delinquency encompasses all public wrongs committed by young
people between the ages of 12 and 20. But the sociologists view this concept as more
broadly by believing that it covers a multitude of different violations of legal and social
norms, from minor offence to serious crimes, which are committed by juveniles.
Sociologists associate the youth behavior with the home, family, neighborhood, peer, and
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many other variables that together or separately influence the formation of young
people’s social environment.
Family and Environment variables
The anti-social behavior may be a part of growing up or the beginning up of a long-term
pattern of the criminal activity. The peer groups play an important in the construction of
delinquent behavior. A child is a part of society in which he lives and due to his
immaturity, he is easily motivated by what he sees around him. It is his environment and
social context that provokes his actions. It is also seen that children in urban and semi-
urban areas who belong to middle class families are found more prone to crimes such as
theft, rape, and murder and this happens because there absence of proper environment
both within a family as well as in a community level. In such situation parents fail to give
a proper guidance. Due to 5 the lack of moral education at the family level and as well as
life skill education, high dropout rate in poor and tribal families have contributed to the
increase in the number of delinquency among children. There are three different levels by
which a better understanding about a juvenile delinquency can be made such as
individual level, microsocial level, and macrosocial level. At the individual level it
focuses on the personality traits, intelligence, routine activities of adolescents, and
characteristics of individual either innate or learned. At microsocial level, delinquency is
a micro aspect and criminologists stressed on the relationship ties, associations with the
delinquent friends and the social process by which an individual becomes the kind of
people who commit delinquent acts, especially the delinquent peer group influence at this
level. In the macrosocial level, the societal characteristics such as social class, social
cohesiveness and social disorganization of neighborhood is used to explain delinquency.
Due to the immaturity of the child, he/she easily gets motivated by what he/she sees
around him/her. It is the environment and social context that provokes his actions. In a
developing country like India, juvenile crimes are steadily rising due to the persistent
poverty, unemployment, inequalities and changing values, etc. inspite of these factors
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there are some more factors such as crimes shows that are shown on the television,
media, increasing population, adverse effects of peer pressure, lavish lifestyle, too much
freedom from the parents, social maladjustment, and family disintegration. Juvenile
delinquency is a problem which despite of different and varied cultural backgrounds is
found with common characteristics universally. Under the Indian law, children between
7-12 years of age having sufficient maturity and between 12-18 years who have
committed an offence are responsible for their criminal list. But such children are not to
be dealt in the same manner as the adults, they are not to be punished but on
rehabilitating and reforming them for which it is necessary to know the positive youth
development. It is seen that the children who are abandoned by their families and who
belong to a family in which their father is habituated to alcohol, and have a delinquency
record in the family, these children from the different peer families and also form gangs
with the other children which thus make them sustain by . using drugs, by doing sex, and
theft and other petty crimes.
Statistics of juvenile delinquency
According to the latest National Crime Record Bureau (NCRB) report 2012, crimes
involving children have increased from 0.8 % (2001) to 11.8 % (2011). This report also
shows the data on juvenile delinquency that children apprehended under both Indian
Penal Code (IPC) and Special and Local Law (SLL) has increased from 30,303 (2010) to
33,887 (2011). In addition to other crime heads, kidnapping and abduction committed by
juveniles have also registered a noticeable increase from 2008 to 2011. While kidnapping
and abduction committed by a juvenile was recorded at 354 in 2008 and it inflated to 823
during 2011. NCRB data also shows that there are a growing number of girl children in
criminal activities and it estimated that from 5.1 % (2010) which increased to 5.8 %
(2011). NCRB data points out that a majority of juveniles are mostly involved in the
crimes such as theft, hurting, burglary, and riots. As a child rights worker Nicole
Manezes pointed out that only 1.1 % of all I.P.C crimes were committed by the juveniles
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in the year 2011. It has been claimed by the news channels that children who are under 18
years of age are committing heinous crimes and day by day it is rising. According to the
NCRB (2011), only 1.1 % of all I.P.C were committed by the juveniles, and 4.5 % of all
crimes committed by the juveniles were rape and only 3.5 % of all rapes were committed
by the juveniles. In a National Study on child abuse (2007), the Ministry of Women and
Child Development found that two out of every three children had been physically
abused, and 53.22 % of children reported that they faced sexual abuse.
Juvenile justice act and juvenile justice board:
The juvenile justice in India was originated in 1850 for those who were convicted in the
court and was thus essential for the children between the ages of 10-18 to provided
vocational training as a part of their rehabilitation process. The Juvenile Justice Act
(2000), was put into action on 1st April, 2001, which aimed at providing care and justice
for the juveniles who are in conflict with law and children in need of care and protection
by implementing a child friendly approach in the best interest of children and also for
their rehabilitation by keeping in view the developmental need of the children which
means it will provide a protective cover to the children who are at risk. The term
‘juvenile’ was no more used because it was considered as an offender; rather this term
was mentioned as a “child in need of care and protection”. The Supreme Court of India
has ruled that when the enactment is silent on certain points then one is to refer to the
preamble of the act. The preamble of the JJ act speaks 7 about “providing for proper care,
protection, and treatment by catering to their developmental needs, and by adopting a
child friendly approach in the adjudication and disposition of matters in the best interest
of children and for their ultimate rehabilitation”. Juvenile Justice Board demeanors the
inquiry against juvenile who is alleged to have acted in conflict with law. The practice for
dealing with juvenile is required to be child friendly and rehabilitation preoccupied with
and not adversarial. The Board encompasses of a judicial magistrate and two social
workers, whose powers are co-extensive with the magistrate. The sittings of a board are
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held within the premises of the Observation Home which does not looks like a court
room rather it is made more child-friendly room.
Observation Homes:
Observation Home is intended for the temporary reception of any juvenile in conflict
with law during the pendency of any inquiry against him / her. The children who are
under the age of 18 years are admitted in this home by the police. The state government
provides various types of services in the Observation Home for the rehabilitation and
social integration of these juveniles. A child who has committed a crime or an offence
and is not placed under the charge of guardian or a parent then he/she is initially sent to
an Observation Home where they are kept and are provided with proper mental and
physical care according to their different age groups. The main aim of the Observation
Home is to bring the best interest of the child i.e. right to education, right to protection,
right to survival, and right to participation.
Special Home:
There is another institution which is called as a Special Home which is established under
an agreement with the voluntary organization. When a child is found guilty and is
declared convicted then he/she is given a three years of conviction and thus is sent to the
Special Home. For the re-socialization of a juvenile various types of services are
provided by the state government. With rising statistics of rates of juvenile crimes and
changing social dynamics, it is essential to probe deeply into the underlying causes of
juvenile delinquency in the present times and find out the ways and means to reduce its
occurrences through appropriate steps. The present study was designed with this
objective and the following states the specific objectives of this study
1.2 OBJECTIVES OF THE STUDY
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The objectives of the study are
To illustrate the role of individual characteristics and environmental background
variables in juvenile delinquency by using case study method. To examine the
perception of fairness of justice among the juvenile delinquents.
To examine the extent to which the Juvenile Justice Programme emphasize
building on strength and Positive Youth Development.
1.3 HYPOTHESIS
It is hypothesized that the both individual and existing environmental conditions
reflecting societal changes are responsible for committing delinquency among children.
The delinquents will demonstrate positive perceptions of the police and officials of the
observation home. Juvenile Justice Programmes will be found to build on strength and
Positive YouthDevelopment. There must be the provision of all facilities which helps in
the positive development of the delinquents.
1.4 CONCEPTUAL FRAMEWORK
There are three different levels by which a better understanding about a juvenile
delinquency can be made, such as individual level micro social level, and macro social
level. At the individual level it focuses on the personality traits, intelligence, routine
activities of adolescents, and characteristics of individual either innate or learned. At
micro social level, delinquency is a micro aspect and criminologists stressed on the
relationship ties, associations with the delinquent friends and the social process by which
an individual becomes the kind of people who commit delinquent acts, especially the
delinquent peer group influence at this level. In the macro social level, the societal
characteristics such as social class, social cohesiveness and social disorganization of
neighborhood is used to explain delinquency.
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According to Strain theory, (Agnew, 1992), people engage in crimes as they experience
strain or stress, they become upset, and they sometimes engage in crime as a result. They
may 9 engage in crime to reduce or escape from the strain they are experiencing. For
example, they may engage in violence to end harassment from others, they may steal to
reduce financial problems, or they may run away from home to escape abusive parents.
They may also engage in crime to seek revenge against those who have wronged them.
And they may engage in the crime of illicit drug use to make themselves feel better. Two
general categories of strain that contribute to crime are described :(1) others prevent you
from achieving your goals, and (2) others take things you value or present you with
negative or noxious stimuli. While strain may result from the failure to achieve a variety
of goals, the failure to achieve three related goals: money, status/respect, and—for
adolescents—autonomy from adults, may lead to crime.
Social disorganization theory (Shaw and McKay, 1942; 1969) seeks to explain
community differences in crime rates. The theory identifies the characteristics of
communities with high crime rates and draws on social control theory to explain why
these characteristics contribute to crime. Social disorganization undermines or hinders
informal social controls within the community and neighborhood, thus allowing high
rates of crime to occur. Therefore, the absence or breakdown of social control is a key
component behind the concept of social disorganization.
According to Social learning theory (Bandura, 1977), juveniles learn to engage in crime
in the same way they learn to engage in conforming behavior: through association with or
exposure to others. Primary or intimate groups like the family and peer group have an
especially large impact on what we learn. In fact, association with delinquent friends is
the best predictor of delinquency other than prior delinquency. However, one does not
have to be in direct contact with others to learn from them; for example, one may learn to
engage in violence from observation of others in the media.
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Theoretical insights throws light into the fact that more than any biological factor, social
and psychological factors are predominant in creating the deviant behavior as a child tries
to imitate and inculcate what his/her environment shows them.
1.5 SIGNIFICANCE OF THE STUDY
This study would lead to the understanding of both the individual characteristics and the
background variables behind the delinquent behavior at present. Earlier, there was not
much impact of media such as television and internet on the young minds. The massive
use of 10 mobile phones among youths was also a rarity. But with changing times and
technological advances, children are more prone to exposure to sensitive materials.
Changing patterns of familial relationships owing to fast and stressful lifestyle also add to
the risk of delinquent behavior. This study would help in gaining insight into the
problems faced by the offenders both before and during their stay in the Observation
Home. The profile and experience of children in conflict with law through the eyes of the
children are important information to be obtained through this study. The study would
also help in suggesting the measures for the improvement of the conditions of the inmates
at Observation Home to ensure safe and healthy environment and proper rehabilitation.
1.6 RESEARCH METHODOLOGY
This research was conducted using the ‘Doctrinal’ and Partly Empirical method of
research. Doctrinal legal research, as conceived in the legal research domain, is research
‘about’ what the prevailing state of legal doctrine, legal rule, or legal principle is. A legal
scholar undertaking doctrinal legal research, therefore, takes one or more legal
propositions, principles, rules or doctrines as a starting point and focus of his study.
I located principles, rules or doctrines in statutory instrument(s), judicial opinions
thereon, discussions thereof in legal treatises, commentaries, textbooks, encyclopedias,
legal periodicals, and debates, if any, that took place at the formative stage of such a rule,
doctrine or proposition. Thereafter, I ‘read’ them in a holistic manner and made an
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‘analysis’ of the material as well as of the rules, doctrines and formulated my
‘conclusions’.
The Empirical methods involve the sample consisting the government observations and questionnaire interviews with the all inmates constituting the sample as well as officials of the observation home.
\
CHAPTER 2: LITERATURE REVIEW
2.1 INTRODUCTION
20
According to the UNICEF, an alarming number of children around the world who are
convicted for various crimes are usually deprived of their needs and rights and held in
detention without sufficient care. While the condition stresses on the improvement of
these children, still there are issues of severe deprivation. Moreover, most of them are not
been liked and yet are being held for months, often without access to legal aids, resulting
that the majority of children come to conflicts with law. Some of these children are from
the disadvantaged populations who are criminalized for simply lying for survival.
Frequently, the children are held under deplorable and inhumane conditions. Physical and
psychological abuse is common and the children even suffer trauma resulting from
torture and interrogation. However, the children’s behavior can be changed by bringing
the positive changes in the environment around them such as, providing them with the
basic needs, enhancing the educational system, creating a scope for positive youth
development etc. Hence a thorough review of literature is done on relevant studies to find
out the various issues concerning the juvenile delinquency and positive youth
development. No child is ever born as a criminal. It might be their surroundings, the peer
group, improper socialization, and lack of parental care, which give raise to the
delinquent behavior among children. The child development is not only meant by taking
care of the basic biological needs of the children but also providing them proper
socialization and extra development for the child. Providing the children with protective
cover through strict warning and rigid restrictions are not the solution to prevent the
delinquent behavior. The parents need to provide gentle guidance and create close
communication to help the children to come under the protective cover. The Convention
on the Rights of the Child (CRC) which was conscripted by the UN Commission on
Human Rights, aimed at protecting and supporting the well-being of children.
Concerning the child rights, it has laid down four rights, i.e. the right to survival (right to
life with dignity, a high standards of health, nutrition, and hygiene), the right to
protection (freedom from all sorts of abuse, exploitation), right to development (right to
education), and right to participation. CRC has taken into consideration almost all the
aspects that could retard growth of a child. The preamble of this act speaks about,
21
“providing the proper care, protection, and treatment by catering to their developmental
needs and by adopting a child friendly approach in the adjudication and disposition of
matters in the best interest of children and their ultimate rehabilitation”. For the child
right to development and right to participate carry the equal importance with other rights.
The child’s right to a life 14 with dignity is considered as an important necessity as the so
called biological survival indicators. The Supreme Court’s decision clarified that the
Right to Life clearly implies Right to Life with Dignity and not mere survival.
2.2 FACTORS UNDERLYING JUVENILE DELINQUENCY
Children with strong social bond will commit less crime than those who have weak social
bond (Hirschi, 1969). Hirschi, states that what prevents individuals from acting upon
internal motivations to commit crime is informal social control which results from the
development of social bonds through the process of socialization. Karen (1995), states
that there should be a good relationship between the mother and the child so that the child
will not develop mistrust and anger. If a child develops anger and mistrust then that child
becomes a child without a conscience and behaves in an anti-social manner. Kupersmidt
and Dodge (2004) maintain that there are two extreme hypotheses which specify the
different roles of peers in developing the aggressive and antisocial behavior of a
delinquent child, and there are some individual characteristics which give rise to
delinquency among children. Harvey and Fine (2004) studied that the children who had
emotions of anger inside them led to the opposite end of the law and this was found in the
case of the children whose parents were divorced. This occurred because these children
needed proper care from their parents which was lacking. Zigler et al (1996:310)
observed that children who frequently expose to environmental violence experience the
symptoms of fear, which leads to delinquent behavior in the later stage.
2.3 PERCEPTION OF FAIRNESS
22
Cauffman et al (2007) examined the extent to which demographics, psychological,
contextual, and legal factors independently predict dispositional outcomes within the two
juvenile court jurisdictions. The results of this study showed that legal factors have the
strongest influence on disposition in both jurisdictions. The evidence of the popular
image of juvenile court as a flexible and lenient institution was not much accepted in this
study rather the decisions of the court were dependent on the juvenile’s psychological
development and mental health.
2.4 POSITIVE YOUTH DEVELOPMENT
Barton and Butts (2008) have studied few juvenile justice programmes that have
attempted to implement some aspects of practices that are strength-based and which also
focus on positive youth development. William H. Barton and Jeffrey A. Butts viewed that
these practices is possible to implement and such implementation may be associated with
staff enthusiasm and perhaps even positive outcomes for youth.
It is opined Martin (2005) that, there are many theories that have been propounded to
explain regarding the juvenile delinquency among children. These theoretical
perspectives have explained only particular aspects but not all the aspects. He further
explains that there are some factors for deviant behavior which includes dysfunctioning
of the family, substance abuse, low self-esteem, peer pressure, and socio-economic
factors.
Some background variables (Tidefors et al, 2011) have been studied, such as, family
problems, parents who are addicted to alcohol or drugs, etc. through self-report
instruments which explains that how an individual experiences himself or herself, the
degree of insight and how they want to disclose themselves to others. Other factors, such
as anger, depression, disruptive behavior and also children, who have lived in foster
homes, have been considered important in this study.
23
Tatar et al (2011) examined that the individual’s perception of fair treatment by the
justice system which has an effect on their attitudinal, emotional, and behavioral
outcomes. Many other measures are taken in this study such as demographics and
background variables, depressive symptoms, anger, self-esteem, attitude towards staff
and inmates, institutional offending, and institutional substance abuse.
Butts et al (2005) emphasized the role of communities which helps in the positive
development of children which is known as Community Youth Development (CYD). The
search institute has considered some factors through which a positive youth development
in a juvenile can be achieved i.e. through individual and contextual factors that helps the
youth to avoid the harmful behavior and keep them engaged in some activities that
promotes to positive development within them. Another study which is done by Richard
and Lerner and his colleagues, emphasizes on the interactions between individuals such
as family, school, and community.
Peiser (2001) studied that the parental discipline style which is considered as a key
variable that helps in examining the contribution of family and personality factors to
delinquency. Self-esteem is considered as an important contributor to the development of
delinquency. A comparative study was conducted between some countries which
measured the levels of self-esteem. Kaplan (1957, 1977, 1978, and 1980) argues that
negative selfesteem results from the situations in which the adolescent is unable to defend
their selfimage, the situations such as school failure, rejection by school, and parental
rejection. Some environmental factors have been identified which leads to delinquency
among youths.
Weatherburn and Lind (1997) observed that the reasons for delinquency in urban and
rural areas where same such as social and economic stress, child neglect, and child abuse.
According to them the social and economic disadvantages are the root cause which leads
to an increasing rate in the offences such as theft, robbery.
24
Comanor and Phillips (2002) observed that fathers play a critical role in the rearing of
boys at a tender age and having a step-father also increases the delinquency among the
children rather than having a step-mother.
2.5 CONCLUSION:
It can be seen that both individual variables and environmental conditions are considered
to be important by the previous studies in being responsible for delinquent behavior. It is
also important that individual’s perception of fair treatment by the justice system has an
effect on their attitudinal, emotional, and behavioral outcomes. Positive youth
development in a juvenile can be achieved i.e. through individual and contextual factors
that help the youth to avoid the harmful behavior and keep them engaged in some
activities that promotes to positive development within them. Therefore, the present study
aims to examine all the three dimensions, - background variables, perception of fair
treatment and positive youth development- as related to juvenile delinquency.
CHAPTER 3: CONCEPT OF JUVENILE SYESTEM
3.1 INTRODUCTION
25
Much has been written about victim children, and children in need of care and protection, but
very little about juvenile offenders who are the truly neglected children. The state machinery
hides them in institutions where no outsider is allowed to tread, and leaves them to their own
devise with scant attention being paid to their well-being and rehabilitation. On completion of
their sentence they are flushed out, ill-equipped to handle life outside of the institution. This
treatment meted out to juvenile offenders is most deplorable, especially when juvenile legislation
recognizes that juveniles in conflict with law also require care and protection. It should be borne
in mind that the Juvenile Justice (Care and Protection of Children) Act 2000, as did the Juvenile
Justice Act 1986 and the Children Acts before it, deal with both children in need of care and
protection and juveniles in conflict with law, and as the title of the 2000 legislation suggests, it is
both the categories of children that require “care and protection”.
A separate adjudicating and treatment mechanism has been established for persons below
18 years of age who have committed an offence. They are not to be treated in the same manner
as are treated adult offenders. The reason for this being that a young person is believed to be less
blameworthy than an adult, as he is prone to act in haste due to lack of judgment, easily
influenced by others.
“...from their inception, youth justice systems have proceeded from the assumption that children
and young people, by dint of their relative immaturity, are less able to control their impulses,
less able to understand the seriousness of their offences and less able to foresee the
consequences of their actions. Linked to this is the belief that the culpability of many young
offenders may be further mitigated by the poverty, cruelty or neglect they have suffered?”1
3.2 HISTORY OF JUVENILE LEGISLATION
From the early 20th century, the different Indian States had enacted their own Children Acts. The
Madras Children Act 1920 was the first Children Act to be enacted, closely followed by Bengal
and Bombay in 1922 and 1924, respectively. Though the Bombay Children Act was enacted 4 1Youth justice in England and Wales, John Pitts, contained in The New Politics of Crime and Punishment, edited by Roger Matthews & Jock Young, Willan Publishing, pg.71.
26
years after the Madras Children Act, it was the first Children Act to become functional. In
February 1924, a voluntary state-aided agency, viz., the Children’s Aid Society, was formed to
implement the provisions of the Bombay Children Act within the municipal corporation limits of
Bombay. CAS established institutions for the care and protection of children, and even today
manages these institutions.
The State’s Children Acts brought within itsambit two categories of children, viz.,
(i)youthful offenders, and (ii) destitute andneglected children. Both these categories ofchildren
were to be handled by the JuvenileCourts. During this period throughout theworld, children were
dealt with under the“welfarism” mode. The well-being of thechild was at center stage for both
thesecategories of children and adjudication ofguilt was not stressed, hence ProbationOfficers
played an important role and legalrepresentation was unheard of.
The Government of India passed the ChildrenAct 1960 to “provide for the care,
protection,maintenance, welfare, training, educationand rehabilitation of neglected or delinquent
children and for the trial of delinquent children in the Union Territories.” Under this Act, a child
is a boy below 16 years of age and a girl, below 18 years of age.2
The Child Welfare Board handled neglected children, and the Children’s Court, delinquent
children. This statute was a precursor to the JJA 1986.
State governments had not only enacted their separate legislations for children, the provisions
contained in each State’s Children Act were also varied. Even the definition of the term “child”
differed from State to State. This prompted the Supreme Court in 19863 to observe,
“4. …we would suggest that instead of each State having its own Children’s’ Act different in
procedure and content from the Children's’ Act in other States, it would be desirable if the
Central Government initiates Parliamentary Legislation on the subject, so that there is complete
uniformity in regard to the various provisions relating to children in the entire territory of the
country. The Children’s’ Act which may be enacted by Parliament should contain not only
provisions for investigation and trial of offences against children below the age of 16 years but
should also contain mandatory provisions for ensuring social, economic and psychological
2Section 2(e) of the Children Act 1960.3SheelaBarse vs. Union of India: (1986) 3 SCC 632; (1986) SCC (Cri) 352; 1986 CriLJ 1736 (SC).
27
rehabilitation of the children who are either accused of offences or are abandoned or destitute
or lost. Moreover, it is not enough merely to have legislation on the subject, but it is equally, if
not more, important to ensure that such legislation is implemented in all earnestness and mere
lip sympathy is not paid to such legislation and justification for non-implementation is not
pleaded on ground of lack of finances on the part of the State. The greatest recompense which
the State can get for expenditure on children is the building up of powerful human resources
ready to take its place in the forward march of the nation.”
The General Assembly on 29th November 1985 adopted the United Nations Standard Minimum
Rules for the Administration of Juvenile Justice4, and for the first time the word “juvenile” was
used in international law, and the term “juvenile justice” was coined. This change in terminology
was then reflected in domestic law with the passing of the JJA 1986. M.S. Sabnis has given the
reasons for the change of terminology on the international platform as being twofold: (1) to
denote that juvenile offenders need to be treated differently from adult offenders due to “the
special problems he (or she) is constrained to face in traditional adult oriented criminal justice
system”, and (2) at the same time to caution against pure welfarism that denies a child due
process and the basic legal safeguards.5
The concentration was to be divided between the well-being of the child and justice.
Justice not only to the child, but also to those aggrieved by his deed. This was necessitated by the
growing cynicism towards “welfarism” amongst politicians and the public, as well as civil
libertarians. The former was of the opinion that children beyond a particular age should be made
responsible for their actions; if they can act as adults do, why should they not be treated as
adults. Whereas the latter believed that “welfarism” led to irrational indiscriminate treatment
being dispensed amongst juveniles placed in a like situation, thus they should be accorded the
Constitutional and procedural precautions guaranteed to adults, especially as juveniles too are
deprived of their personal liberty.
Nations introduced separate legislations for juvenile offenders and children requiring care and
protection. With the enactment of JJA 1986, though there continued to be a single law, two
4 Also known as the Beijing Rules.5Juvenile Justice and Juvenile Correction: Pride and Prudence, M.S. Sabnis, Somaiya Publications Pvt Ltd. (Bombay & New Delhi-1996). Pg31.
28
distinct machineries were set-up to deal with “neglected juveniles” and “delinquent juveniles”.
Pending their inquiries before their respective competent authorities, both these categories of
children were kept in the Observation Home. JJA 2000 for the first time provided for “juveniles
in conflict with law” and “children in need of care and protection” to be kept separately pending
their inquiries. This segregation aims to curtail the corruption of the innocent child from the
influence of the “criminal juvenile”. The vulnerable misguided child is now perceived as a
conniving violent juvenile from whom society, including other children, requires protection. This
change in perception is because juvenile crime is today more noticeable, mostly occurring on the
streets where the young attempt to survive without family or societal support. The media too has
played a major role in portraying juveniles in conflict with law as the perpetrators of barbaric
acts who get away lightly due to their age.
Juvenile legislation in India has attempted to balance “welfarism” and “justice” with the
conceptualization of a “welfare court” that provides a child his Constitutional and procedural
safeguards at the inquiry stage, and thereafter, decides his treatment mode keeping in mind the
child’s interest and his comprehensive rehabilitation. That a person below 18 years of age who
has committed an offence also requires protection continues to be reflected in our law, and it is
wished that it will always continue to do so. The same law, JJA 2000 still governs both
“juveniles in conflict with law” and “children in need of care and protection”. Our Juvenile
Justice Boards have thankfully not yet been transformed into lesser criminal courts for youthful
offenders, and have persisted with a socio-legal approach, giving the social aspect of juvenile
delinquency the importance it deserves. The United Nations Convention on the Rights of the
Child, while assuring a child certain guarantees,6 also obligates that “the best interest of the child
shall be a primary consideration”7 in all actions concerning children. The Model Rules too have
regarded the Principle of Best Interest as being fundamental for the application, interpretation
and implementation of JJA 2000, and is to be of primary consideration while administrating
juvenile justice.
3.3 WHO IS A JUVENILE
6Article 40 of CRC.7Article 3.1 of CRC.
29
A “juvenile” or “child” means a person who has not completed eighteenth year of age. A
boy or girl under 18 years of age is a juvenile or child under section 2(k) of JJA 2000. The age of
juvenility of a boy child under JJA 1986 was below 16 years and that of a girl child was below
18 years of age.8 Those working in the field of children had campaigned to increase the age of
boy juveniles to bring it on par with girl juveniles. The age of a boy juvenile has been increased
to 18 years by JJA 2000 mainly to bring juvenile legislation into conformity with the CRC which
the Government of India had ratified on 11th December 1992.9 The Statement of Objects and
Reasons of JJA 2000 has indicated this non-conformity as being a ground for amending JJA
1986:
“2. In this context, the following further proposals have been made-
...
(iii) To bring the juvenile law in conformity with the United Nations Convention on the
Rights of the Child;
(iv)To prescribe a uniform age of eighteen years for both boys and girls;
...”
Article 1 of CRC states that, “For the purposes of the present Convention, a child means every
human being below the age of 18 years unless, under the law applicable to the child, majority is
attained earlier.” So currently both boys and girls below 18 years of age enjoy the protection of
juvenile legislation. Whatever be the reason for increasing the age of the boy juvenile, it was
vital to do so and is welcomed.
Section 2(l) of JJA 2000 has defined “juvenile in conflict with law” as a juvenile who is
alleged to have committed an offence and has not completed eighteenth year of age as on the
date of commission of such offence. This amended definition10 has put to rest the debate as to the
relevant date at which juvenility is to be determined. The courts, including the Supreme Court,
had continuously held that the date of offence was the relevant date. In 2000, the Supreme
8Section 2(h) of JJA 1986.9 Ratification is the act by which a country shows its willingness to be bound by an international instrument.10Brought into effect from 22-8-2006 by the Juvenile Justice (Care and Protection of Children) Amendment Act 2006 (33 of 2006).
30
Court, in Arnit Das vs. State of Bihar,11 shifted from this oft held view, and observed that the
relevant date at which juvenility was to be determined was the date on which the juvenile was
produced before the competent authority, viz., the JJB. Arnit Das’ case raised the question about
“reference to which date the age of the petitioner is required to be determined for finding out
whether he is a juvenile or not”. The two-Judge Bench of the Supreme Court held that “So far as
the present context is concerned we are clear in our mind that the crucial date for determining
the question whether a person is a juvenile is the date when he is brought before the competent
authority.” This judgment as deserved was widely critiqued. It was criticized as it diverted from
a well-settled principle of law thereby depriving young persons of the beneficial provisions of
juvenile legislation. Many felt that the judgment had failed to interpret the law in its correct
spirit. Moreover, it did not consider a1982 three-Judge Bench decision of the Supreme Court8
that had unambiguously held that the relevant date was the date of offence. In Umesh Chandra’s
case the Supreme Court had held:12
“As regards the general applicability of the Act, we are clearly of the view that the
relevant date for the applicability of the Act is the date on which the offence takes place.
Children Act was enacted to protect young children from the consequences of their criminal acts
on the footing that their mind at that age could not be said to be mature for imputing mensrea as
in the case of an adult. This being the intendment of the Act, a clear finding has to be recorded
that the relevant date for applicability of the Act is the date on which the offence takes place…
We are clearly of the view that the relevant date for applicability of the Act so far as age of the
accused, who claims to be a child, is concerned, is the date of the occurrence and not the date of
the trial.”
Lawyers and academicians decried the non-consideration of Umesh Chandra’s three-Judge
Bench judgment whilst deciding ArnitDas’case.13 A review petition was filed and referred to a
larger Bench “to resolve the conflict between the two opinions.”14 But the Supreme Court
11Arnit Das vs. State of Bihar: (2000) 5 SCC 488; 2000 SCC (Cri) 962; AIR 2000 SC 2264; 2000 CriLJ 2971 (SC).12Umesh Chandra vs. State of Rajasthan : (1982) 2 SCC 202; 1982 SCC (Cri) 396; AIR 1982 SC 1057; 1982 CriLJ 994 (SC).13Relevant date for applying the Juvenile Justice Act, Dr. VedKumari, (2000) 6 SCC (Jour) 9.14Arnit Das vs. State of Bihar : (2001) 7 SCC 657; 2001 SCC (Cri) 1393; AIR 2001 SC 3575.
31
demurred from resolving the issue then, because on facts Arnit Das was not ajuvenile on the date
of offence, and the court was not inclined to answer academic questions only.
Ultimately a five-Judge Bench settled this issue in Pratap Singh vs. State of Jharkhand
&Ors.15reverting back to the seasoned findings thathad been incorrectly overturned in Arnit Das
’judgment. The Apex Court in Pratap Singh’scase was faced with a query as to “Whether the
date of occurrence will be the reckoning date for determining the age of the alleged offender as
juvenile offender or the date when he is produced in the court / competent authority.” All five
Judges un animously opined, “The reckoning date for the determination of the age of the juvenile
is the date of the offence and not the date when h eis produced before the authority or in the
court.” The decision in Umesh Chandra’s case was held to be correct law, and it was established
that “the decision rendered by atwo-Judge Bench of this Court in Arnit Das cannot be said to
have laid down a good law.”
In the Arnit Das judgment of 2000, the Supreme Court had observed that the legislature had
been vague whilst defining the term “delinquent juvenile” in the 1986 Act:
“22. All this exercise would have been avoided if only the legislature would have taken care
not to leave an ambiguity in the definition of ‘juvenile’ and would have clearly specified the
point of time by reference to which the age was to be determined to find a person to be a
juvenile.”
Fortunately the legislature heeded this comment of the Apex Court, and to remove any
misunderstanding, the definition of juvenile in conflict with law was amended in 2006. At this
stage it is essential to examine the evolution of the term “de linquent juvenile” or “juvenile in
conflict with law” under juvenile legislation in relation to the point in time at which juvenility
isto be determined. The 1986 Act defines “delinquent juvenile” as a juvenile who has been found
to have committed an offence.16
15 (2005) 3 SCC 551; 2005 SCC (Cri) 742; AIR 2005 SC 2731; 2005 CriLJ 3091 (SC)
16Section 2(e) of JJA 1986.
32
It was this definition that in ArnitDas’ case was found to be ambiguous. In order to
remove the uncertainty, the 2000 Act redefined “juvenile in conflict with law”17 to mean a
juvenile who is alleged to have committed an offence. This alteration clarified that juvenility was
to be ascertained with reference to the point in time when it was assumed that an offence had
been committed. It is only on the date of occurrence that an offence is assumed to have been
committed. After Pratap Singh’scase, the legislature through the 2006 amendment removed any
doubt by setting out in the definition itself that “juvenile in conflict with law” means a juvenile
who is alleged to have committed an offence and has not completed eighteenth year of age as on
the date of commission of such offence.18 In case of continuous offence, i.e., an offence
committed over a period of time, juvenility is to be determined on the date of commencement of
the offence and if the juvenile thereafter crosses 18 years, he is still to be dealt with under
juvenile legislation irrespective of when the FIR is registered.
3.4 International Scenario
The Second UN Congress on Prevention of Crime and Treatment of Offenders in 1960 stated
that juvenile delinquency should be understood as the commission of an act, which when
committed by an adult above a prescribed age would constitute an offence in law. The Sixth
United Nations Congress on the Prevention of Crime and Treatment of Offenders held in
Venezuela in 1980 discussed further and in detail the problem of juvenile delinquency. They
decided that there should be the Standard Minimum Rules forthe Administration of Juvenile
Justice. Every child has its human rights and they should not be denied to it by anybody. Hence,
they said that there should be laws to protect theright of the children. Consequent to it, it was
accepted that special attention should be given to the steps initiated to prevent delinquency
among children and also to homeless and street children in the urban setting. The need for giving
special attention to youth criminality was also given due importance and emphasis. The nature of
youth criminality in semi-urban and rural areas was considered. Further, the following areas
were discussed at the meeting at Beijing (May 14 to 18, 1985) which examined the Standard
Minimum Rules for the Administration of Juvenile Justice.
A ‘child’ is defined in the UN Convention on the Rights of the Child (CRC) 7 as a person under 17 In the 2000 Act, the term “juvenile in conflict with law” replaced the term “delinquent juvenile”.18Section 2(l) of JJA 2000.
33
the age of 18. This includes infancy, early childhood, middle childhood and adolescents.
The UN Convention on Rights of the Child,8 1989 draws attention to four sets of civil, political,
social, economic and cultural rights of every child. These are:
1. Right to survival: This includes the right to life, the highest attainable standard of health,
nutrition, and adequate standards of living. It also includes the right to a name and a
nationality.
2. Right to protection: This includes freedom from all forms of exploitation, abuse,
inhuman or degrading treatment, and neglect including the right to special protection in
situations of emergency and armed conflicts.
3. Right to development: This includes the right to education, support for early childhood
development and care, social security, and the right to leisure, recreation and cultural
activities.
4. Right to participation: This includes respect for the views of the child, freedom of
expression, access to appropriate information, and freedom of thought, conscience and
religion.
The Convention provides the legal basis for initiating action to ensure the rights of children in
society.Relevant articles from the UN Convention on the Rights of the Child
Article 34
States Parties undertake to protect the child from all forms of sexual exploitation and sexual
abuse. For these purposes States Parties shall in particular take all appropriate national, bilateral
and multilateral measures to prevent:
a. The inducement or coercion of a child to engage in any unlawful sexual activity;
b. The exploitative use of children in prostitution or other unlawful sexual practices;
c. The exploitative use of children in pornographic performances and materials.
Article 35
States Parties shall take all appropriate national, bilateral and multilateral measures to prevent the
abduction of, the sale or traffic in children for any purpose or in any form.
34
Article 36
States Parties shall protect the child against all other forms of exploitation prejudicial to any
aspects of the child’s welfare.
Any child primarily on account of his dependence and vulnerability deserves to be completely
looked after by others. As a child, he needs support and care to survive since the nature does not
provide to the human infant any protection at all. The need to survival and protection continues
till the child attains maturity and adulthood. The child being the nursery of all civilization and all
human potential has to be provided with various institutional and non-institutional system of
development which consists of programs pertaining to education, life skills, nutrition, health, and
shelter and most important, the right to childhood.
3.5 Provision related to Children in “Constitution of India”
Article 14:The State shall not deny to any person equality before the law or theprotection
of the laws within the territory of India.
Article 15
a. The State shall not discriminate against any citizen on grounds only of religion, race,
caste, sex, place of birth or any of them.
b. No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of
them, be subject to any disability, liability, restriction or condition with regard to—
access to shops, public restaurants, hotels and places of public entertainment;
or
the use of wells, tanks, bathing ghats, roads and places of public resort
maintained wholly or partly out of State funds or dedicated to the use of the
general public.
Nothing in this article shall prevent the State from making any special
provision forwomen and children.
c. Nothing in this article or in clause (2) of article 29shall prevent the State from making
any special provision for the advancement of any socially and educationally
35
backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent
the State from making any special provision, by law, for the advancement of any
socially and educationally backward classes of citizens or for the Scheduled Castes or
the Scheduled Tribes in so far as such special provisions relate to their admission to
educational institutions including private educational institutions, whether aided or
unaided by the State, other than the minority educational institutions referred to in
clause (1) of article 30.
Article 21A. The State shall provide free and compulsory education to all children of the
age of six to fourteen years in such manner as the State may, by law, determine.
Article 24. No child below the age of fourteen years shall be employed to work in any
factory or mine or engaged in any other hazardous employment.
Article 39. The State shall, in particular, direct its policy towards securing—
a. that the citizens, men and women equally, have the right to an adequate means of
livelihood;
b. that the ownership and control of the material resources of the community are so
distributed as best to subserve the common good;
c. that the operation of the economic system does not result in the concentration of
wealthand means of production to the common detriment;
d. that there is equal pay for equal work for both men and women;
e. that the health and strength of workers, men and women, and the tender age of
childrenare not abused and that citizens are not forced by economic necessity to enter
avocationunsuited to their age or strength.
f. that children are given opportunities and facilities to develop in a healthy manner and
in conditions of freedom and dignity and that childhood and youth are protected
against exploitation and against moral and material abandonment.
Article 45. The State shall endeavour to provide, within a period of ten years from the
commencement of this Constitution, for free and compulsory education for all children
until they complete the age of fourteen years.
36
ARTICLE 47 .It states it is the duty of the state to raise level of nutrition and standard of
living. The parliament has enacted the 86th constitutional amendment in 2002 and made
right to education a fundamental right.
3.6 RETROSPECTIVE LEGISLATION
There was also confusion as to whether the provisions of the 2000 Act would apply to a
person who had committed an offence prior to 1st April 2001, i.e., before the 2000 Act came into
force, and such person was on the date of offence above 16 years and below 18 years of age. The
Supreme Court scrutinized this issue in Pratap Singh’s case, and held that the 2000 Act would
only so apply if the person was below 18 years of age on 1st April 2001, i.e., when the 2000 Act
came into force, and his case was pending. By this reasoning a person under 18 years of age on
the date of offence would not enjoy the protection guaranteed to a juvenile if he had crossed the
age of 18 years on 1st April 2001. This partial retrospective argument undermines the object of
the Act, viz., to protect the young against their immature action. This confusion too has been
erased by the 2006 amendment. It is now categorically stated, “In all pending cases including
trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with
law, in any Court, the determination of juvenility of such a juvenile shall be in terms of clause (l)
of section 2, even if the juvenile ceases to be so on or before the date of commencement of this
Act and the provisions of this Act shall apply as if the said provisions had been in force, for all
purposes and at all material times when the alleged offence was committed.”19
Hence, the 2000 Act governs all persons who had not completed 18 years of age on the
date of offence irrespective of when the offence was committed. The JJA 2000 is a retrospective
piece of legislation. It affects that which had occurred prior to its coming into force. Though the
provision in the 2000 Act increasing the age of juvenility came into force on 1st April 2001, it
will also be applicable to offences that took place before 1st April 2001. Retrospective
legislation is one which is applicable to acts and facts that took place prior to enactment of the
legislation.“One that relates back to a previous transaction and gives it a different legal effect
from that which it had under the law when it occurred.”20
19Explanation to section 20 of JJA 2000.20 Black’s Law Dictionary, West Publishing Co., 6th Edition, Pg 1317.
37
The newly inserted section 7-A allows a person to raise a plea of juvenility even after final
disposal of the case, and obligates the court to conduct an inquiry to ascertain such person’s age
as on the date of offence and if found to be a juvenile on that date, to transfer the case to the JJB
for appropriate orders. Section 64 of JJA 2000 extends the ambit of the Act to those persons
undergoing a sentence of imprisonment at the commencement of the Act and who were below 18
years of age on the date of offence. It is imperative for State governments to expeditiously
establish a mechanism to identify persons who were below 18 years of age on the date of offence
and have been convicted as adults and are undergoing their respective sentences in different jails.
Prompt identification of such persons is necessary to ensure that no irreparable damage is caused
to them, and that they are not punished for acts done at an age when legislation intends them to
be treated differently from an adult, and that they are able to avail of Section 64 which provides
for their treatment in accordance with juvenile legislation. Criminal courts could have sentenced
such persons with life imprisonment or death, and they could be on the death row awaiting
execution.
3.7 OVERRIDING EFFECT OF JUVENILE LEGISLATION
The procedure prescribed under JJA 2000 will govern cases concerning juveniles in conflict with
law irrespective of the offences they have committed. Juvenile offenders are not to be treated in
the same manner as adult accused. Juveniles are to be treated differently as they are less culpable
and less capable of looking after themselves.21 Juvenile legislation lays down a distinct custodial,
adjudicatory and sentencing mechanism. The severity of the offence is of no consequence, nor
that is the offence covered under a special law22 or local law.23
The Supreme Court and different High Courts have held that juvenile legislation shall
reign supreme in juvenile cases no matter the nature of offence committed.24 To avoid any doubts
in this respect, JJA 2000 unequivocally states:
21Relevant date for applying the Juvenile Justice Act, Dr. VedKumari, (2000) 6 SCC (Jour) 9.22 Special law is a statute relating to a particular subject, and creates offences that are not covered under IPC. For example, the Immoral Traffic (Prevention) Act 1956, the Narcotic Drugs & Psychotropic Substances Act 1985, the Arms Act 1959.23 Local law is a statute that is applicable within a specific region. For example, the Bombay Police Act 1951, the Maharashtra Control of Organised Crime Act 1999.24 Raj Singh vs. State of Haryana: (2000) 6 SSC 759; 2000 SCC (Cri) 1270.
38
“Section 1(4): Notwithstanding any thing contained in any other law for the time being in force
the provisions of this Act shall apply to all cases involving detention, prosecution ,penalty or
sentence of imprisonment of juveniles in conflict with law under such other law.”
Hence, whatever crime the juvenile is allegedto have committed, on ascertaining that he isa
juvenile his case should be brought beforeJJB and his custody be with the ObservationHome.
Thereafter the course taken should bethat as set-out under juvenile legislation.
CHAPTER 4 :AGE DETERMINATION
4.1 AGE OF CRIMNAL RESPONSIBILITYThe domestic laws of all countries have laid down a minimum age below which a person is
exempt from prosecution and punishment. The rationale for such exemption is the absence of
mensrea, i.e., not to criminalize the acts of those who at the time of commission of the crime did
not know the right from the wrong. Persons below that age do not realize nor intend the
consequences of their acts. Article 40(3) (a) of CRC requires State Parties to promote “the
39
establishment of a minimum age below which children shall be presumed not to have the
capacity to infringe the penal law”.
The age of criminal responsibility in India is fixed at 7 years by IPC. Section 82 IPC:
“Nothing is an offence which is done by a child under seven years of age.” Hence, under
Indian law a child below 7 years of age cannot be prosecuted and will not enter the juvenile
justice system as a juvenile in conflict with law. If such child falls within the definition of child
in need of care and protection,25 he could be produced before the Child Welfare Committee for
his care, protection and rehabilitation.
Most European countries have fixed the age of criminal responsibility between 13 to 15 years;
France, Poland, Germany, Italy and Finland have fixed it at 13, 13, 14, 14, and 15 years,
respectively. Seven years is a very low age of criminal responsibility, and requires to be raised.
The law has recognized that a person between the age of 7 and 18 years is less culpable than an
adult, and has set-out different levels of criminal responsibility depending upon the child’s
maturity and age.
Section 83 IPC:
“Nothing is an offence which is done by a child above seven years of age and under
twelve, who has not attained sufficient maturity of understanding to judge of the nature and
consequences of his conduct on that occasion.”
The accused child to avail of this defence will have to prove that he is below 12 years of age and
that he has not attained adequate maturity of understanding therefore he did not know that what
he was doing was wrong.
Under the Indian law children between 7 to 12 years of age having sufficient maturity and
between 12 to 18 years who have committed an offence are responsible for their criminal acts,
but are not to be treated or sentenced in the same manner as an adult. Such children will be dealt
with under juvenile legislation, and the focus will be on reforming and rehabilitating them.
4.2 DETERMINATION OF AGE
25Section 2(d) of JJA 2000.
40
Despite existing juvenile legislation, persons below the age of 18 years are treated as adults and
deprived the benefits of the statute. It is the police who at the first instance incorrectly depict a
juvenile in conflict with law to be an adult. The Magistrates and Judges thereafter continue to so
treat the juvenile to his detriment. Due to this apathy, children are incarcerated in prisons and
sentenced to life imprisonment in absolute violation of the law.
The police are known to deliberately portray a juvenile as an adult in order to retain his custody.
Once shown to be a juvenile, the accused’s custody is shifted to the Observation Home and his
control to the JJB. Moreover, the police are inconvenienced by repeated visits to the JJB which is
a change to their regular routine. Hence, it is preferred to add a few years to the age of the
accused.
Magistrates and Judges are too busy to notice that the person produced before them is a
juvenile. The accused juvenile due to monetary constraints has no legal representation till the
trial stage when a legal-aid lawyer is appointed, and he himself is personally unaware of juvenile
legislation to be able to raise the plea of juvenility. The lawyer too often does not suitably advise
his client. So many years pass as the juvenile languishes as an under trial in jail in the company
of hardened criminals before his section 313 CrPC statement is recorded. This stage is reached
on completion of trial when the court directly asks the accused his age, but several years have
passed before this stage is reached and the accused could have crossed the age of juvenility. The
Magistrate or Judge fail to discern that the young accused was below 18 years of age on the date
of offence, and go on to sentence him as an adult.
The Supreme Court has in Raisul’scase26relied upon the age given by the accused in his section
313 CrPC statement in preference to the estimation of the Sessions Court and the High Court.
There have been cases where the criminal justice system has not recognized an accused to
be a juvenile, and the claim of juvenility is raised for the first time before the Supreme Court.
This practice resulted in the Apex Court in 198427 instructing Magistrates to conduct an inquiry
about age when it appeared that the accused was under 21years of age. The onus is upon the
court to take measures to determine the age of the accused. The Criminal Manual issued by the
High Court of Judicature (Appellate Side) Bombay for the guidance of the Criminal Courts and
their Subordinate Officers28states:26Raisul vs. State of U.P.: (1976) 4 SCC 301; 1976 SCC (Cri) 613; AIR 1977 SC 1822; 1977 CriLJ 1555 (SC).27GopinathGhosh vs. State of West Bengal: 1984 Supp SCC 228; 1984 SCC (Cri) 478; AIR 1984 SC 237; 1984 CriLJ 168 (SC).28A.K. Gupte& S.D. Dighe, Hind Law House, 2001, Fifth edition, Chapter VI, pg.149.
41
“All Courts should, whenever a youthfuloffender or a party is produced before them ,take steps
to ascertain his age. If the age given by the Police does not appear to be correct from the
appearance of the offender or party, and if the Police cannot produce satisfactory evidence
regarding the age, the Court should consider the desirability of sending the offender or party to
the Medical Officer for the verification of his age before proceeding with the case.... At the time
of the examination of the accused, the Sessions Judge or Magistrate should there
fore ,specifically asks such accused person his or her age for the purpose of recording it. If the
Sessions Judge or Magistrate suspects that the age stated by the accused, having regard to his or
her general appearance or some other reason, has not been correctly stated ,then the Sessions
Judge or Magistrate should make a note of his estimate. The Court may also, when it so deems fit
or proper, order a medical examination of the accused for the purpose of ascertaining his
correct age. If any documentary evidence on the point of age is readily available, the
prosecution may be asked to produce it.”
The Criminal Manual in Chapter VIII (pg.198)which deals with Child and Young Offenders
obligates the Magistrate to ascertain the age of an accused produced before him. The police are
required to state the age of the accused and to produce evidence in support of the same. “The
best evidence of age is the entry in the Births and Death Register. Where this is not available, the
accused person should be got medically examined and a medical certificate obtained in regards
to his age. A definite finding with regard to his age should be recorded in every case.” If the
accused is found to be a juvenile, he is to be produced before the JJB along with his case papers.
In BholaBhagat’scase,29 the Supreme Court instructs courts before whom a plea of juvenility is
raised to hold an inquiry for ascertaining the age of such accused, and return a finding about his
age. Ascertainment of age plays a very important role as it ensures that a juvenile enjoys the
protection he is entitled to under law.
The best proof of age is the Birth Certificate, but the rate of registration of births in India is very
low. The registration of births at the national level in 1995 was 55%.30 This rate of registration of
birth fluctuates from one State to another; in Tamil Nadu it was 90.3% whereas in Rajasthan it
29BholaBhagat vs. State of Bihar: (1997) 8 SCC 720; AIR 1998 SC 236.30Report of the Working Group on Registration of Births, Deaths and Marriages constituted by the National Commission on Population.
42
was 23.7%. The next best proof of age is the School Leaving Certificate. More persons will
possess aSchool Leaving Certificate than a Birth Certificate as school enrolment rates are high.
The gross enrolment ratio in primary education for the year 2002 – 2003 for boys is 100% and
for girls 93%.31 Even if a child has been merely enrolled in a school and never attended, he will
be able to obtain documents that will record his date of birth, such as admission form and entry
in school register, and such date will also be reflected in theSchool Leaving Certificate.Birth
Certificate and School LeavingCertificate is the only documentary evidencethat is considered for
the purpose ofdetermining age. Age mentioned in RationCards, Family Cards, Identity Cards
issued bythe Election Commission of India, etc., is notproof of age, and should not be treated
assuch by the courts. A Birth Certificate orSchool Leaving Certificate produced by theaccused to
denote his age may be gottenverified in the event of the court doubting itsveracity. Verification is
generally done bypolice’s scrutiny of the original registersfrom which the extracts have been
issued, orby the court examining a representative ofthe authority that has issued the document
orthe child’s parents/relatives. Even otherwise,the recording of parent’s/ relative’s evidences in
certain cases is important to assist the court in determining the age of the accused. All possible
efforts should be made to ensure that a juvenile is treated as such.
In the absence of documentary evidence, the opinion of a medical practitioner may be
called for. The juvenile is sent to a public or police hospital for medical examination to
determine his age. “The principle means, which enable one to form a fairly accurate opinion
about the age of an individual, especially in early years, are teeth, height and weight,
ossification of bones and minor signs.”32 Ossification test is performed by radiological
examination of several main joints, and the opinion of age is based on the extent of fusion of the
bones. The age as ascertained by medical examination is not conclusive proof of age, and
judicial notice has been taken that it is a mere opinion of a doctor and the margin of error could
be of 2 years on either side.33 The foundation of the Indian criminal justice system is that any
doubt or ambiguity should support the accused. Hence in borderline cases the accused is to be
treated as a juvenile. Moreover, the Supreme Court has held that the approach of the courts
31 Press Note dated 13th February 2006 issued by the Ministry of Statistics &Programme Implementation, Government of India.32Modi’s Medical Jurisprudence & Toxicology, Butterworths India, New Delhi (22nd Edition), pg.49.33Jaya Mala vs. Home Secretary, Govt. of J&K: (1982) 2 SCC 538; 1982 SCC (Cri) 502; AIR 1982 SC 1297; 1982 CriLJ 1777(SC).
43
should not be hyper-technical whilst determining juvenility.34 In case of conflict between
documentary evidence and the medical examination report, the age shown in an authentic
document will be treated as the correct age of the accused.35
A “doctor is not always truthful”, a professional witness is prone to side with the party
who seeks his service was the observation of the High Court in a case where medical
examination to determine age was sought by a private party.36 More circumspection is required
when it is the police that escort a juvenile in conflict with law to a medical officer. In the event
of a medical examination report indicating a person apparently a juvenile to be over 18 years of
age, an application should be made before the court for conducting through another hospital a
second medical examination, and in case of conflicting results, the doctors testimony should be
recorded by the court to make certain which of the two medical examination report depict a
correct estimate of the accused’s age. The Bombay High Court in its judgment dated 18th
February 2007 passed in Criminal Writ Petition No.1694 of 2003 (PRERANA vs. State of
Maharashtra &Ors.), whilst dealing with the issue of commercial sexual exploitation of woman
and children has instructed Magistrates and Sessions Judges “to order a second medical
examination to ascertain the age of the victim to be conducted by a medical officer attached to
another public hospital, in case the result of the first medical examination are under doubt.”
Under JJA 2000, the JJB is to conduct an inquiry to determine age when a person is brought
before it, but such inquiry need be conducted only in cases where the person is not apparently a
juvenile.
“49. Presumption and determination of age.-
(1) Where it appears to a competent authority that person brought before it under any of the
provisions of this Act (otherwise than for the purpose of giving evidence) is a juvenile or the
child, the competent authority shall make due inquiry so as to the age of that person and for that
purpose shall take such evidence as may be necessary (but not an affidavit) and shall record a
finding whether the person is a juvenile or the child or not, stating his age as nearly as may be.”34Rajinder Chandra vs. State of Chhattisgarh: (2002) 2 SCC 287; 2002 SCC (Cri) 333; AIR 2002 SC 748; 2002 CriLJ 1014 (SC).35Bhoop Ram vs. State of U.P.: (1989) 3 SCC 1; 1989 SCC (Cri) 486; AIR 1989 SC 1329; (1989) 2 Crimes 294.36Smt. Kamlesh&Anr.vs. State of U.P. : 2002 CriLJ 3680 (Allahabad).
44
Sub-section (2) of section 49 states that once the JJB has treated the person as a juvenile and
disposed of the case, no subsequent proof showing the person to be an adult can be considered to
set-aside an order passed by the JJB. There is no need for the JJB to conduct an inquiry about age
when the juvenile is produced before it under orders of a court that has reached a finding of
juvenility.
The claim of juvenility could be raised for the first time by the accused before the Magistrate or
the Sessions Judge, or before the High Court or Supreme Court. The courts have repeatedly held
that the court before which the plea of juvenility is raised must conduct an inquiry or direct an
inquiry by a subordinate court, and record a finding with regards to age. This judicial trend has
more recently been diverted from in SurinderSingh’s case37 when the Supreme Courtrejected a
plea of juvenility that was for thefirst time raised before the Apex Court.Legislature intervened
by amending JJA200038 to assure juveniles the envisagedtreatment. Section 7-A was inserted to
clarifythat courts should entertain at any stage,even after final disposal of the case, a pleathat an
accused was below 18 years of age atthe time of occurrence of the crime.
“7-A. Procedure to be followed when claim ofjuvenility is raised before any Court.-(1)Whenever
a claim of juvenility is raised before any Court or a Court is of the opinion that an accused
person was a juvenile on the date of commission of the offence, the Court shall make an inquiry,
take such evidence as may be necessary (but not an affidavit) so as to determine the age of such
person, and shall record a finding whether the person is a juvenile or a child or not, stating his
age as nearly as may be.
Section 7provides for the measures to be taken by the Magistrate when a juvenile is
wrongly produced before him. The Magistrate is to record his opinion, and forward the juvenile
and the proceedings before JJB. Initially there was confusion as to the manner in which the
Magistrate is required to “record his opinion”. Some believed that the age determination inquiry
should be conducted by the Magistrate, whilst others, that the Magistrate should merely transfer
the case of a supposed juvenile to JJB for conducting an age determination inquiry under section
49 of JJA 2000. The former position was adhered to by most Magistrates and correctly so in 37Surinder Singh vs. State of U.P.: (2003) 10 SCC 26; 2004 SCC (Cri) 717; AIR 2003 SC 3811.382006 amendment.
45
view of the Supreme Court’s observations in BholaBhagat’scase. The insertion of section 7-A
has settled this issue as it categorically states that the court before which the claim of juvenility is
made should conduct an inquiry to determine the age of the accused. Hence, the Magistrate is
obligated to conduct an age determination inquiry and arrive at a finding of juvenility before
transferring the accused to the Observation Home and his case to JJB.
CHAPTYER 5: JUVENILE JUSTICE BOARD AND CRIMNAL PROCEEDINGS
“The center of interest in the juvenile court is always the juvenile and his welfare, and not the act
or its consequence which might have resulted in his (or her) being brought before the court.”39
Criminal cases of a juvenile in conflict with law are to be dealt with by JJB, and not the regular
criminal courts. This is the mandate of juvenile legislation, enacted since the turn of the 20th
century, as well as the Criminal Procedure Code 1898 and 1973. Section 27 of CrPC 1973
states:
39Juvenile Justice and Juvenile Correction: Pride and Prudence, M.S. Sabnis (Somaiya Publications Pvt. Ltd., Bombay & New Delhi-1996), pg. 81.
46
“Jurisdiction in the case of juveniles.- Any offence not punishable with death or
imprisonment for life, committed by any person who at the date when appears or is brought
before the Court is under the age of sixteen years, may be tried by the court of a Chief Judicial
Magistrate, or by any Court specially empowered under the Children Act, 1960 (60 of 1960), or
any other law for the time being in force providing for the treatment, training and rehabilitation
of youthful offenders.”
A like provision was also there in the 1898 Code.40 It is most surprising that though the Criminal
Procedure Code has been amended in 2005, section 27 was not altered to bring it in conformity
with existing juvenile legislation. With the enactment of juvenile legislation this provision of
CrPC has become redundant.
The first Juvenile Court in India was established in Bombay in 1927. Initially it was presided
over by a Presidency Magistrate who used to sit for a few hours on fixed days. Thereafter, since
1942, the Juvenile Court was manned by a full-time stipendiary Magistrate who was assisted by
a team of experts, such as POs, psychologists. The Children Acts provided for establishment of
Juvenile Courts to handle cases of youthful offenders and neglected children. This system of a
single authority handling cases of both juvenile offenders and neglected children was diverted
from in 1986, when on the international arena, adjudicating the guilt of a juvenile took
precedence over “welfarism”.
The chief purpose for distinct handling of a juvenile’s case is that such case requires a
socio-legal approach as reformation and rehabilitation, and not punishment is the goal. Under
JJA 2000, JJB is the “competent authority” in relation to juveniles in conflict with law.41 The
constitution of the JJB reflects this objective of juvenile legislation. The JJB has to tread a fine
path; juveniles are culpable for their criminal acts, but they should not be penalized for such
action, instead the aim should be to persuade them away from the enticements of a life of crime.
The 2000 Act has given equal importance to the Magistrate and the social workers; they jointly
constitute the competent authority to deal with juvenile cases.
The JJB consists of a Metropolitan Magistrate or a Judicial Magistrate of the first class in
a non-metropolitan area, and 2 social workers one of whom at least should be a woman.42 The
40Section 29-B.41Section 2(g) of JJA 2000.42Section 4(2) of JJA 2000.
47
Magistrate and the social workers are to function as a Bench, i.e., together, but their roles are
distinct. The Magistrate plays an important role in deciding whether the juvenile has committed
an offence or not.
When the JJB is satisfied that an offence has been committed, then the social workers
play an important role in deciding what should be done for the comprehensive rehabilitation of
the juvenile, keeping in view the circumstances in which the offence was committed. It has been
rightly put by Barry C. Feld that the Magistrate takes care of the deed and the social workers of
the needs ofthe juvenile.43
The JJB is bestowed with the powersconferred upon a Magistrate under CrPC.44The
Metropolitan Magistrate or JudicialMagistrate of the first class, as the case maybe, is designated
as the Principal Magistrate.45In the event of any difference of opinionamongst the members of
JJB whilst passingany order, the majority opinion shall prevail.46The view of the Principal
Magistrate willprevail when no majority opinion ispossible.47
JJBs are required to be constituted in everydistrict by 21stAugust 2007.48 The JJB is
tohave fixed place, days and timings of itssittings. The frequency of its sittings willdepend upon
the pendency of cases before aparticular JJB. Expeditious completion of aninquiry by JJB is vital
so that the juvenile’slife is not unnecessarily disrupted for a longperiod, and his rehabilitation
process startsat the earliest. Prolonged incarcerationpending an inquiry causes trauma to
thejuvenile, which can be easily avoided.Observation Homes generally have nofacilities for
vocational training nor ways tokeep juveniles occupied, thus resulting injuveniles getting restless
and desperate. Dueto prolonged incarceration there have beeninstances when juveniles have
escaped or tried to escape from Observation Homes, orhave gone on a rampage causing
destructionwithin the institution.
The law recognizing the importance of speedyinquiry has mandated the JJB to complete an
inquiry within 4 months from the date of its commencement, and if the same is not possible due
to the special circumstances of a case, the JJB is required to extend the stipulated period for
completion of inquiry bya reasoned order.49 When a juvenile case is said to have commenced; is
43Bad Kids: Race and the transformation of the Juvenile Court, Barry C. Feld, Oxford University Press (1999).44Section 4(2) of JJA 2000.45Ibid.46Section 5(4) of JJA 2000.47Ibid.48Section 4 of JJA 2006.49Section 14(1) of JJA 2000.
48
it when thejuvenile is produced before the JJB or is itwhen the charge-sheet is filed or is it
whenthe juvenile’s plea is recorded. The SupremeCourt in 198650 has directed the statemachinery
to ensure the expeditious filing ofa charge-sheet and completion of a juvenile’s inquiry:
“3. We would also direct that where a complaint is filed or first information report is lodged
against a child below the age of 16 years for an offence punishable with imprisonment of not
more than 7 years, the investigation shall be completed within a period of three months from the
date of filing of the complaint or lodging of the first information report and if the investigation is
not completed within this time, the case against the child must be treated as closed…”
The judgment continues to say that the inquiry should be completed within 3 months from the
date of filing of the charge-sheet. Thus by this judgment the case against the juvenile, under the
1986 Act, must be disposed of within 6 months at the latest. The 1986 Act provided, “An inquiry
regarding a juvenile under this Act shall be held expeditiously and shall ordinarily be completed
within a period of three months from the date of its commencement, unless, for special reasons to
be recorded in writing, the competent authority otherwise directs.”51
The 2000 Act has increased this period to 4months, and has allowed for the time to
beextended by the JJB “having regard to thecircumstances of the case and in specialcases”. So in
accordance with the prevailinglaw a juvenile case should generally bedisposed of within 7
months from his arrestat the latest.
No period has been laid down under juvenilelegislation with regards to the time periodwithin
which a charge-sheet should be filedin a juvenile case. It is understood that whena different
procedure is not laid down in acriminal statute, the procedure stipulatedunder the CrPC will
apply.52 The CrPC doesnot lay down the period of time within which acharge-sheet should be
filed, but states thatan accused should be released on bail ifcharge-sheet is not filed within 90
days ofarrest if the offence is one punishable withdeath, life imprisonment or imprisonment fora
term of 10 years or more, and in case of anyother offence, if not filed within 60 days ofarrest.53
In case of a juvenile, Section 167CrPC should be read as governing the timeperiod within which
the charge-sheet shouldbe filed, if the charge-sheet is not filed withinthe stipulated period, the
case against thejuvenile should be quashed.
50SheelaBarse vs. Union of India: (1986) 3 SCC 632; 1986 SCC (Cri) 352; 1986 CriLJ 1736 (SC).51Section 27(3) of JJA 1986.52Section 54 of JJA 2000.53Section 167 of CrPC.
49
5.1PRODUCTION BEFORE JJB
1. It is generally the police or Special Juvenile Police Unit who produces a juvenile before
JJB. Any person or other agency so producing the juvenile must inform the concerned
Police Station or SJPU about such production.
2. The juvenile is to be produced before JJB within 24 hours of his arrest.
3. If the JJB is not sitting, the juvenile may be produced before a single member. Rule 11(4)
of the Model Rules requires the order passed by a single member of the JJB on the
juvenile’s production to be ratified by the JJB at its next sitting.
4. The SJPU or any other police personnel who produces a juvenile before the JJB must
submit a report before the JJB indicating the particulars of the case, viz., the name, age
and address of the juvenile; the circumstances in which the juvenile was apprehended;
that the juvenile was not lodged in police lock-up or jail; that the parents or guardian and
PO have been informed about the juvenile’s arrest; the reasons for delay, if production is
after 24 hours of arrest; etc.
5. The SJPU or police may take the assistance of a voluntary organization having the
requisite skill, to prepare the report containing the social background of the juvenile, and
to take charge of the juvenile pending production before JJB.54
5.2 INQUIRY PROCEDURE BEFORE JJB
1. Pending inquiry, the juvenile is to be lodged in the Observation Home.
2. The JJB should release the juvenile on bailexcept in certain prescribed circumstances.
3. The case is to be regularly placed beforethe JJB. If the juvenile is not released on bail, the
JJB should give short dates, and in no event should the next date extend beyond 15 days
of the previous date.
4. Once the juvenile is lodged in theObservation Home, the SJPU or the concerned police
station should not be given custody of the juvenile without the prior consent of the JJB.
The JJB too should not give custody of the juvenile to the SJPU or the police, except
supervised custody in extraordinary situations. In the event of the SJPU or police desiring
54Rule 11(12) of the Model Rules.
50
to interrogate the juvenile or conduct a Test Identification Parade, an application for such
purpose should be made before the JJB, and the JJB is to pass appropriate orders thereon.
In case such application of the SJPU or police is allowed, the JJB shall direct that the
interrogation or TIP should be conducted in the presence of the Superintendent of the
Observation Home or the PO.
5. The JJB has to keep in mind the interest of the juvenile, and play a pro-active role to
ensure that the SJPU or police fittingly perform their functions. For example, the JJB
should direct the police to file the charge sheet at the earliest; produce prosecution
witnesses when instructed to do so.
6. The culmination of the investigation is bythe SJPU or police filing a police report or
charge sheet55 before the JJB. The charge sheetcontains the name of the complainant;the
nature of information; the name of thejuvenile in conflict with law; witnessstatements;
etc. It is on the perusal of thecharge-sheet that the court determineswhether there is a
prima facie case againstthe accused. If further evidence is obtainedafter filing the charge-
sheet, a supplementalcharge-sheet may be filed by the SJPU orpolice.
7. On the charge-sheet being filed, the JJB seeks the PO’s report, i.e., Social Investigation
Report. The PO whilst preparing the SIR is to meet with the juvenile and his parents or
guardian, and if necessary to visit the juvenile’s home. The PO should mention in the SIR
about the background of the juvenile, whether the parents or guardian are suitable to be
given charge of the juvenile, and what should be done to assure the juvenile’s proper
rehabilitation. The SIR plays a vital role at the time of sentencing; the JJB is required to
consider this report prior to passing any order with regards torehabilitation of the
juvenile.56 An SIR mayalso be sought from a recognized voluntary organization or any
other means, especiallyin the event of the juvenile hailing from aregion outside the
territorial jurisdiction ofthe JJB entertaining the juvenile’s case.
8. The next stage is to record the plea of thejuvenile, i.e., the juvenile is asked whether
hehas or has not committed the offence. Thejuvenile is briefly informed about
theprosecution’s case prior to recording hisplea.
9. If the juvenile admits to having committedthe offence, the JJB may hold that the
juvenilehas committed the offence, and passappropriate orders as prescribed under 55Section 173 of CrPC.56Section 15(2) of JJA 2000.
51
section 15 of JJA 2000. Even if the juvenilepleads guilty, the JJB may continue with
theinquiry after passing a reasoned order as towhy it chose not to accept the juvenile’s
plea.Generally a plea of guilt is accepted by theJJB except if the JJB is of the opinion that
it isnot in the interest of the juvenile to accept hisplea of guilt, or that the juvenile has
beencoerced by some person or persons intoentering a false plea.The practice wherebythe
JJB, the PO, or the Superintendent orstaff of the Observation Home pressurizesthe
juvenile to plead guilty should bediscouraged. Often the juvenile pleads guiltybecause he
or his parents or guardian aretold that pleading guilty is the only recoursefor quick
disposal of his case. Compelling ajuvenile to submit to a false plea of guiltcauses him
great distress even if he isreleased as a consequence, mainly becausethe juvenile feels
that he is branded as acriminal though he has not done any wrong.
10. A juvenile who has pleaded not guilty maybe allowed by the JJB to alter his plea
andplead guilty if it is in the interest of thejuvenile to do so, and he has acted
sovoluntarily. A juvenile may after his plea ofnot guilty is recorded feel repentant and
wishto change his plea, hence, there should be noimpediment to such request by the
juvenile.
11. When the juvenile pleads not guilty or hisplea of guilt is not accepted by the JJB,
thejuvenile’s case is ready for the recording ofevidence. The prosecution witnesses are
tobe summoned and their evidence to berecorded. JJBs should follow the practice
ofdirecting the APPs to scrutinize the charge sheet,and only summon the
necessarywitnesses so that the case is not needlesslyprolonged.
12. Whilst conducting an inquiry, the JJBshould follow the procedure laid down inCrPC for
trials in summons cases.57 In casesinvolving serious offences, to safeguard therights of
the juveniles, the JJB should recordthe evidence in detail as in a warrant case.
13. The prosecution witnesses are examinedby the APP on behalf of the prosecution and
cross-examined by the juvenile’s lawyer. The evidence is recorded by the JJB, and copy
of the Notes of Evidence should be contemporaneously given to the juvenile’s lawyer.
14. The JJB must do all in its power to seethat prosecution witnesses are present togive
evidence on the notified date, and if not, to seek a report from the police for such
absence. If a prosecution witness fails to attend, the JJB should issue a bailable or non-
57Section 54 of of JJA 2000.
52
bailable warrant to guarantee the witness’ presence, or else call upon the prosecution to
close their case.
15. After the prosecution closes its case, thesection 313 CrPC statement of the juvenile is
recorded by the JJB. Questions will be put by the JJB to the juvenile to enable him to
explain any portion of the evidence that incriminates him. No oath is administered at the
time of recording the section 313 CrPCstatement of the juvenile, nor is he liable to
punishment for giving a false answer. The statement of the juvenile cannot be a substitute
for the prosecution’s evidence; theprosecution has to independently prove that the
juvenile has committed the offence. The juvenile’s statement has to be considered by the
JJB in conjunction with the evidence adduced by the prosecution.
16. The juvenile is given an opportunity tolead defense evidence if he so desires. Defense
witnesses are cross-examined by the prosecution.
17. Thereafter the prosecution and thedefense put forth their respective oral arguments.
Written arguments in support of their case, including the judgments they rely upon, may
be submitted by either party to theJJB.58
18. On the basis of the evidence garnered andthe arguments advanced, the JJB will pass an
order disposing the case. If the JJB is satisfied that the juvenile has committed an offence,
an opportunity should be given to the defense to make arguments on the point of
sentencing prior to the passing of an order.
5.3 APPREHENSION
Under juvenile legislation, the word “apprehension” replaces the word “arrest”. The
precautions and safeguards contained in the Constitution of India and Supreme Court judgments
with regards to the rights of an accused on arrest also apply to juveniles in conflict with law. The
Constitutional provisions in this respect are reproduced hereunder:
“Art. 22(1): No person who is arrested shall be detained in custody without being informed, as
soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to
be defended by, a legal practitioner of his choice.
58Section314 of ofCrPC.
53
(2) Every person who is arrested and detained in custody shall be produced before the nearest
magistrate within a period of twenty-four hours of such arrest excluding the time necessary for
the journey from the place of arrest to the court of the magistrate and no such person shall be
detained in custody beyond the said period without the authority of a magistrate.”
The Supreme Court in Dilip K. Basu vs. State of West Bengal &Ors.59issued guidelines to
befollowed in all cases of arrest or detention tilllegal provisions were made in that behalf asa
measure to prevent custodial violence.Police personnel “should bear accurate,visible and clear
identification and name tagswith their designation” during arrest andinterrogation. Furthermore,
the police at thetime of arrest should prepare a memo ofarrest attested by at least one witness
andcountersigned by the arrestee. An arrestedperson shall be entitled to have one friend
orrelative or other person known to him orhaving interest in his welfare being informed,as soon
as practicable, that he has beenarrested and is being detained at a particularplace.
Section 10(1) of JJA 2000 provides for a juvenile to be produced before the JJB within twenty-
four hours of his arrest. Detaining a person in custody beyond this period amounts to illegal
detention. The Bombay High Court in BabanKhandu Rajput vs. State of Maharashtra60 imposed
compensation of Rs.10, 000/- uponthe state for keeping the Petitioner indetention for a period of
two and a half dayswithout producing him before the appropriateauthority with mala fide
intention withoutgiving any explanation justifying the saiddetention.
Under section 13 of JJA 2000, the police “assoon as may be after the arrest, inform-
“(a) the parent or guardian of the juvenile, ifhe can be found of such arrest and direct himto be
present at the Board before which thejuvenile will appear; and
(b) the probation officer of such arrest toenable him to obtain information regardingthe
antecedents and family background ofthe juvenile and other material circumstanceslikely to be
of assistance to the Board formaking inquiry.”59(1997) 1 SCC 416; 1997 SCC (Cri) 92; AIR 1997 SC 610.60 2002 AllMR(Cri) 1373.
54
Similar provisions were there in BCA 194861and JJA 1986.62 If the juvenile’s parent orguardian
cannot be instantly informed, anyperson of the juvenile’s choice should beinformed of his arrest.
The JJB on first production should seek apolice report with regards to the date andtime of
the juvenile’s arrest and his admissionto the Observation Home, and whether aparent or guardian
or person of juvenile’schoice and the PO has been informed aboutthe juvenile’s arrest.
Moreover, theparticulars so furnished by the police shouldbe gotten confirmed from the juvenile
.
5.4 BAIL
Bail is the release of an accused person pending investigation and/or trial, whilst at the same time
ensuring his future attendance in court at the trial stage. The CrPC divides offences into bailable
and non-bailable offences. Whether an offence is bailable or not is denoted in the First Schedule
to the CrPC, or under the special or local law that deals with a specific offence. In bailable
offences, the grant of bail is a right of the accused, and may be granted by a police officer or by a
court before which the accused is produced.63 In case of a non-bailable offence, the grant of bail
is not as of right; it is for the court to decide whether bail should be granted or refused depending
upon the facts and circumstances of each case.64 The gravity of an offence, the chances of an
accused absconding or tampering with prosecution witnesses are some of the circumstances that
the court keeps in mind when deciding a bail application. Certain instances have been stipulated
in the CrPC where bail is to be granted even if the offence is non-bailable, such as the accused is
a woman, or sick, or infirm.
The position with regards to bail is very different under juvenile jurisprudence. Since the
enactment of different Children Acts, the grant of bail has been mandatory under juvenile
legislation except in certain prescribed instances that could cause harm to the child if so released.
For example, BCA 1948 provides for a child who has committed a non-bailable offence to be
61Sections 66 and 67 of BCA 1948.62Section 19 of JJA 1986.63Section 436 of CrPC.64Section 437 of CrPC.
55
released by a police officer65 or a court,66 except if releasing the child on bail is “likely to bring
the child into association with any reputed criminal or shall expose him or her to moral danger or
where his or her release would defeat the ends of justice.” Releasing a juvenile on bail is
essential as it prevents the disruption of his life.
Section 18 dealt with “Bail and custody of juveniles” under the 1986 Act, and is reproduced
hereunder:
“(1) When any person accused of a bailable or non-bailable offence and apparently a juvenile is
arrested or detained or appears or is brought before a Juvenile Court, such person shall,
notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or in
any other law for the time being in force, be released on bail with or without surety but he shall
not be so released if there appears reasonable grounds for believing that the release is likely to
bring him into association with any known criminal or expose him to moral danger or that his
release would defeat the ends of justice.
(2) When such person having been arrested is not released on bail under sub-section (1) by the
officer-in-charge of the police station, such officer shall cause him to be kept in an observation
home or a place of safety in the prescribed manner (but not in a police station or jail) until he
can be brought before a Juvenile Court.
(3) when such person is not released on bail under sub-section (1) by the Juvenile Court it shall,
instead of committing him to prison, make an order sending him to an observation home or a
place of safety for such period during the pendency of the inquiry regarding him as may be
specified in the order.”
Hence, even under the 1986 Act, it was obligatory upon the Juvenile Court to release the juvenile
on bail except in certain prescribed instances. This provision also clarifies that a juvenile under
no circumstances can be kept in a police lock-up or jail. A similar provision for bail existed
under the 2000 Act67 with minor modifications, viz., (i) a juvenile could not be released on bail if
such release exposed him to “moral,physical or psychological danger”, and (ii) thepolice were
obligated to place a juvenile onlyin the Observation Home, and not in a “placeof safety”.
65Section 64 of BCA 1948.66Section 64-A of BCA 1948.67Section 12 of JJA 2000.
56
Taking note of this dichotomy, the 2006 amendment to the 2000 Act has inserted that a
juvenile may when released on bail be “placed under the supervision of a Probation Officer or
under the care of any fit institution or fit person.”68
“12.Bail of juvenile. –
(1) When any person accused of a bailable or non- bailable offence, and apparently a
juvenile, is arrested or detained or appears or is brought before a Board, such person
shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of
1974) or in any other law for the time being in force, be released on bail with or without
surety or placed under the supervision of a Probation Officer or under the care of any fit
institution or fit person but he shall not be so released if there appear reasonable
grounds for believing that the release is likely to bring him into association with any
known criminal or expose him to moral, physical or psychological danger or that his
release would defeat the ends of justice.
(2) When such person having been arrested is not released on bail under sub-section (1)
by the officer-in-charge of the police station, such officer shall cause him to be kept only
in an observation home in the prescribed manner until he can be brought before a Board.
(3) When such person is not released on bail under sub-section (1) by the Board it shall,
instead of committing him to prison, make an order sending him to an observation home
or a place of safety for such period during the pendency of the inquiry regarding him as
may be specified in the order.”
It is hoped that this amendment results in agreater number of juveniles being released on bail:
those not having parents or local guardians, or those unable to furnish surety can take advantage
of this new insertion in the law. A fit institution or a fit person willing to take temporary care of a
juvenile pending inquiry may file a bail application before JJB.JJBs should not wait for a bail
application tobe filed on behalf of a juvenile, they should be pro-active and suo-moto grant bail
on befitting conditions.
The Beijing Rules provide that “Detentionpending trial shall be used only as a measure of
last resort and for the shortest possibleperiod of time”69 and “Whenever possible,detention
pending trial shall be replaced byalternative measures, such as closesupervision, intensive care or
68Section 12(1) of JJA 2000.69Clause 13.1 of the Beijing Rules.
57
placement witha family or in an educational setting orhome.”70 At clause 10.2, the Beijing
Rulesprovide that upon apprehension of a juvenile,a judge or other competent body
shouldwithout delay consider the issue of release ofthe juvenile.
The Indian courts have repeatedly held thatbail can only be refused to a juvenile on thethree
prescribed grounds,71 and not on thegrounds of heinousness of offence72 or primafacie proof of
guilt.73
5.5 APPEAL
“The word ‘appeal’ means the right of carrying a particular case from an inferior to a
superior Court with a view to ascertain whether the judgment is sustainable.”74 It is an
“application for the judicial examination by a higher court of the decision of any inferior
court.”75 The statute prescribes the court or authority before which an appeal is to be preferred,
and the time within which the appeal is to be filed.
Under JJA 2000, any order passed by the JJB may be challenged in appeal before the Sessions
Court. The appeal is to be filed within thirty days of the JJB’s passing the order.
“52. Appeals.- (1) Subject to the provisions of this section, any person aggrieved by an order
made by a competent authority under this Act may, within thirty days from the date of such
order, prefer an appeal to the Court of Session:
Provided that the Court of Session may entertain the appeal after the expiry of the said period of
thirty days if it is satisfied that the appellant was prevented by sufficient cause from filing the
appeal in time.”
70Clause 13.2 of the Beijing Rules.71Dattatray G. Sankhe vs. State of Maharashtra &Ors.: 2003 AllMR(Cri) 1693 (Bombay); Ranjit Singh vs. State of H.P. : 2005 CriLJ 972 (H.P.).72Vikky alias Vikram Singh vs. State of U.P.: 2003 CriLJ 3457 (Allahabad); Vijendra Kumar Mali, etc. vs. State of U.P.: 2003 CriLJ 4619 (Allahabad).73Rahul Mishra vs. State of M.P.: 2001 CriLJ 214 (M.P.).74The Code of Criminal Procedure, Ratanlal&Dhirajlal (Eighteenth Edn.) 2006, Wadhwa&Co.– Nagpur, pg.1329.75A Concise Dictionary of Law – Second Edition, 1990, Oxford University Press, pg.24.
58
An appellant is the party who files an appeal as he is aggrieved by the JJB’s order. Section 52(2)
of JJA 2000 bars the filing of an appeal from an order passed by the JJB acquitting the juvenile.
Hence, an order of acquittal is a final order that cannot be challenged in appeal before the
SessionsCourt. Section 52(3) of JJA 2000 bars the filing of a second appeal from an order passed
in appeal by the Sessions Court. Hence, an order of conviction can only be challenged once by
the juvenile.
The Limitation Act 1963 deals with the computation of the stipulated period within
which the appeal is to be filed. The period of thirty days is to be calculated from the day after
that on which the JJB passes its order.76 The days spent for obtaining certified copy of JJB’s
order is to be excluded whilst computing the limitation period, but the days prior to making an
application for certified copy is to be included. Thus, an application for certified copy of the
order should be made as soon as the order is passed.
As under the provision of section 52(1) of JJA 2000, section 5 of the Limitation Act also gives
the superior court the power to condone delay when satisfied that there was adequate reason for
the delay.
A provision identical to section 52 was contained in JJA 1986.77 Under BCA 1948, only
the final order passed by the Juvenile Court or the Court having the powers of a JuvenileCourt
could be challenged in appeal,78 and theappeal was to be preferred within 90 days.79Subsequent
juvenile legislation allows thepreferring of an appeal before the SessionsCourt within thirty days
from any orderpassed by the competent authority.
5.6 REVISION
Under juvenile legislation, the High Court hasbeen empowered with revisional jurisdictionto
examine the legality or propriety of anyorder passed by the JJB or the SessionsCourt.
“53. Revision. – The High Court may, at anytime, either of its own motion or on anapplication
received in this behalf, call for therecord of any proceeding in which anycompetent authority or
76Section 12 of the Limitation Act 1963.77Section 37 of JJA 1986.78Section 94 of BCA 1948.79Section 96(1) of BCA 1948.
59
Court Session haspassed an order for the purpose of satisfying itself as to the legality or
propriety of any such order and may pass such order in relation thereto as it thinks fit:
Provided that the High Court shall not pass an order under this section prejudicial to any person
without giving him a reasonable opportunity of being heard.”
A provision identical to section 53 was contained in JJA 1986.80 Ordinarily, a finding of
guilt passed by the JJB is challenged in appeal before the Sessions Court, thereafter the order
passed in appeal by the Sessions Court may be questioned by either party before the High Court
in revision. However, any person aggrieved by an order passed by the JJB may directly file a
revision application to the High Court. In so doing, the party aggrieved by a finding of guilt loses
the opportunity to challenge the order twice, once in appeal and next in revision.
A revision application before the High Court may be filed by the juvenile from an order passed
by the Sessions Court confirming the JJB’s order.
CHAPTER 6: POWERS OF THE COURT
6.1POWER OF HIGH COURT AND SESSION COURT
UNDER JUVENILE LEGISLATIONSection 6(2) of JJA 2000:“The powers conferred on the Board by or under this Act may also be
exercised by the High Court and the Court of Session, when the proceeding comes before them in
appeal, revision or otherwise.”
This provision allows the High Court and the Sessions Court to determine issues and pass
orders regarding a juvenile when the same is brought before them in appeal, revision or
otherwise. The word “otherwise” is very wide and empowers the High Court and the Sessions
Court to entertain any petition or application dealing with juveniles in conflict with law and pass
orders thereon without remanding the issue for reconsideration to the JJB. A provision similar to
section 6(2) was contained in JJA 1986.81
80Section 38 of JJA 1986.81Section 7(3) of JJA 1986.
60
6.2 JUDGMENTS
SANJAY SURI & ANR. VS. DELHI ADMINISTRATION, DELHI & ANR82
This matter dealt with the incarceration of children in Tihar jail, and resulted in a separate
structure being erected to keep juveniles. The Supreme Court had appointed the District Judge to
inquire into the conditions prevailing in the juvenile ward of Tihar jail. The inquiry revealed,
amongst other things, that juvenile prisoners were sexually assaulted by adult prisoners. The
Supreme Court lamented:
“We are anxious to ensure that no child within the meaning of the Children’s Act is sent to jail
because otherwise the whole object of the Children’s Act of protecting the child from bad
influence of jail life would be defeated.” This judgment instructed “every Magistrate or trial
Judge authorized to issue warrants for detention of prisoners to ensure that every warrant
authorizing detention specifies the age of the person to be detained. Judicial mind must be
applied in cases where there is doubt about the age – not necessarily by a trial – and every
warrant must specify the age of the person to be detained.” Further the jail authorities were also
instructed, “We call upon the authorities in jails throughout India not to accept any warrant of
detention as a valid one unless the age of the detenu is shown therein. By this order of ours, we
make it clear that it shall be open to the jail authorities to refuse to honour a warrant if the age
of the person remanded to jail custody is not indicated.”
STATE OF KARNATAKA VS. HARSHAD83
The question before the High Court was whether the Sessions Court or the Fast Track Court has
jurisdiction to entertain a juvenile case. The court categorically held that in view of section 6(1)
of JJA 2000, the Juvenile Justice Board “has the exclusive power of dealing with the trial of
Juveniles in conflict with law and to that extent, the jurisdiction of any Court including that of
the Sessions Court or Fast Track Court be barred.”
821988 Supp SCC 160; 1988 SCC (Cri) 248; AIR 1988 SC 414; 1988 CriLJ 705 (SC).832005 CriLJ 2357 (KARNATAKA).
61
Furthermore, upon the submission of the Public Prosecutor that “only five Juvenile Justice
Boards have been constituted to deal with the entire State”, and that each Juvenile Justice Board
handles juvenile cases of a group of districts, the High Court directed “the State Government
may consider the necessity of establishing one Juvenile Justice Board for each district”.
RAJINDER CHANDRA VS. STATE OF CHHATISGARH & ANR84
In this case the Supreme Court was facedwith the question as to how an accused on the border of
16 years was to be dealt with, and held in favour of holding the accused to be ajuvenile. In its
judgment whilst referring to ArnitDas’ case, the Supreme Court held that“…this court has, on a
review of judicialopinion, held that while dealing with questionof determination of the age of the
accused forthe purpose of finding out whether he is ajuvenile or not, a hyper-technical
approachshould not be adopted while appreciating theevidence adduced on behalf of the
accused insupport of the plea that he was a juvenile andif two views may be possible on the said
evidence, the court should lean in favour of holding the accused to be a juvenile inborderline
cases.”
BHOLA BHAGAT VS. STATE OF BIHAR85
Bhola Bhagat claimed to be 18 years of age inhis section 313 CrPC statement which was
recorded 4 years after commission of theoffence, and his co-accused Chandra Sen Prasad and
Mansen Prasad claimed to be 17years and 21 years, respectively. The HighCourt did not avail
him the protection ofjuvenile legislation, viz., the Bihar ChildrenAct 1970, on the ground that
other than thestatement of the accused there was no other material to support that Bhola Bhagat
and the others were juveniles on the date ofoccurrence of the offence. The SupremeCourt opined
that “If the High Court haddoubts about the correctness of their age asgiven by the appellants
and also as estimatedby the trial court, it ought to have ordered anenquiry to determine their
ages. It should nothave brushed aside their plea without suchan enquiry.”
84(2002) 2 SCC 287; 2002 SCC (Cri) 333; AIR 2002 SC 748; 2002 CriLJ 1014 (SC).85(1997) 8 SCC 720; AIR 1998 SC 236.
62
The Supreme Court held Bhola Bhagat and his co-accused to be juveniles, “Thecorrectness of
the estimate of age as given bythe trial court was neither doubted norquestioned by the state
either in the HighCourt or in this Court. The parties have,therefore, accepted the correctness of
the estimate of age of the three appellants asgiven by the trial court. Therefore, thesethree
appellants should not be denied thebenefit of the provisions of a sociallyprogressive statute. In
our consideredopinion, since the plea had been raised in theHigh Court and because the
correctness ofthe estimate of their age has not beenassailed, it would be fair to assume that onthe
date of the offence, each one of theappellants squarely fell within the definitionof the expression
‘child’. We are under thesecircumstances reluctant to ignore andoverlook the beneficial
provisions of the Actson the technical ground that there is no othermaterial to support the
estimate of ages ofthe appellants as given by the trial court,though the correctness of that
estimate hasnot been put in issue before any forum.”Whilst quashing the sentence of life
imprisonment and releasing Bhola Bhagat,Chandra Sen Prasad and Mansen Prasad,though
upholding their conviction, the ApexCourt observed,
“18. Before parting with this judgment, we would like to re-emphasise that when a pleais
raised on behalf of the accused that he wasa ‘child’ within the meaning of the definitionof the
expression under the Act, it becomesobligatory for the Court, in case it entertainsany doubt
about the age as claimed by theaccused, to hold an inquiry itself fordetermination of the question
of age of theaccused or cause an inquiry to be held andseek a report regarding the same,
ifnecessary by asking the parties to leadevidence in that regard. Keeping in view thebeneficial
nature of the socially-orientedlegislation, it is an obligation of the Courtwhen such a plea is
raised to examine thatplea with care and it cannot fold its hands andwithout returning a positive
finding regardingthat plea, deny the benefits of the provisionsto an accused. The Court must hold
an inquiryand return a finding regarding the age oneway or the other. We expect the High
Courtsand the subordinate Courts to deal with suchcases with more sensitivity, as otherwise
theobjects of the Acts would be frustrated andthe efforts of the legislature to reform
thedelinquent child and reclaim him as a usefulmember of the society would be frustrated.
The High Courts may issue administrativedirections to the subordinate Courts thatwhenever
such a plea is raised before themand they entertain any reasonable doubtabout the correctness
63
of the plea, they mustas a rule, conduct an inquiry by givingopportunity to the parties to
establish theirrespective claims and return a finding regarding the age of the accused
concernedand then deal with the case in the mannerprovided by law.”
JAYA MALA VS. HOME SECRETARY, GOVERNMENT OF JAMMU & KASHMIR86
In this case the Apex Court took “judicial notice that the margin of error in age ascertained by
radiological examination is two years on either side”.
MASTER RAJEEV SHANKARLAL PARMAR & ANR. VS. OFFICER-IN-CHARGE, MALAD
POLICE STATION & ORS87
The accused was declared a juvenile by the Sessions Court, but was not shifted to the
Observation Home nor was his case transferred to the JJB. It was only the High Court’s
intervention that resulted in Rajeev being shifted to the Observation Home three months after
having been declared a juvenile. “Thus, there was a gap of more than three months in carrying
out the order passed by the learned Additional Sessions judge. The order dated 7th March 2003
was implemented and affected only on 13th June 2003.” The excuse of the jailor for not
complying with the court’s orders was the non-availability of escort. Rajeev was awarded
compensation of Rs.15,000/- by the High Court. The State challenged this order before the
Supreme Court, but to no avail.
MASTER SALIM IKRAMUDDIN ANSARI & ANR. VS. OFFICER-IN-CHARGE, BORIVALI
POLICE STATION, MUMBAI & ORS88
In this case the excuse of the jailor for not transferring the accused to the Observation Home was
that the order of the Sessions Court declaring Salim a juvenile, though transmitted by the
Registrar of Sessions Court and received by the jail, was misplaced.
86(1982) 2 SCC 538; 1982 SCC (Cri) 502; AIR 1982 SC 1297; 1982 CriLJ 1777 (SC).872003 CriLJ 4522 (BOM).882005 CriLJ 799 (BOM).
64
Under the High Court’s order, Salim was transferred to the Observation Home on 9th July 2004,
i.e., seven months after the Sessions Court order. Salim was awarded compensation of
Rs.1,00,000/- .
The Bombay High Court examined the granting of bail under section 12 of JJA 2000, and
observed, “According to this section, the first petitioner can be released on bail with or without
surety. Looking to the peculiar facts and circumstances, we direct the Juvenile Justice Board to
release the first petitioner on his executing personal bond only.”
GOPINATH GHOSH VS. STATE OF WEST BENGAL89
The accused claimed before the SupremeCourt for the first time that he was below 18years of
age on the date of occurrence andentitled to the benefits of the West BengalChildren Act 1959,
thus his conviction and lifesentence under section 302 IPC be set-aside.
The Supreme Court framed the followingissue for consideration of the SessionsJudge:“What was
the age of the accused GopinathGhosh (appellant) on the date of the offencefor which he was
tried and convicted?” The Sessions Judge conducted a detailedinquiry; the accused was sent for
medicalexamination, the accused’s mother and theHeadmaster of the school he attended
wereexamined by the court, and GopinathGhoshwas declared a juvenile.
The Supreme Court in its judgment also dealtwith the late raising of the claim of juvenilityby the
accused, “…we consider it proper notto allow a technical contention that thiscontention is being
raised in this Court for thefirst time to thwart the benefit of theprovisions being extended to the
appellant, ifhe was otherwise entitled to it.” Theconviction and sentence was held to
beunsustainable and set-aside. GopinathGhoshwas granted bail, and his case was transferredto
the competent authority for proceeding inaccordance with the law applicable tojuveniles.
GopinathGhosh was in prison foralmost 10 years, but the Supreme Courtchose not to release him
itself because“neither his antecedents nor the backgroundof his family are before us. It is
difficult for usto gauge how the juvenile court would havedealt with him.”
891984 Supp SCC 228; 1984 SCC (Cri) 478; AIR 1984 SC 237; 1984 CriLJ 168 (SC).
65
In this judgment the Apex Court has taken“notice of a developing situation in recentmonths in
this Court that the contention aboutthe age of a convict and claiming the benefitof the relevant
provisions of the Act dealingwith juvenile delinquents prevalent in variousStates is raised for the
first time in this Courtand this Court is required to start that inquiryafresh.” The Supreme
Court, hence, felt theneed to identify a solution:
“We are of the opinion that whenever a caseis brought before the Magistrate and theaccused
appears to be aged 21 years orbelow, before proceeding with the trial or undertaking an inquiry,
an inquiry must bemade about the age of the accused on thedate of the occurrence. This ought to
be moreso where special Acts dealing with juveniledelinquents are in force. If necessary,
theMagistrate may refer the accused to theMedical Board or the Civil Surgeons, as thecase may
be, for obtaining creditworthyevidence about age. The Magistrate may aswell call upon accused
also to lead evidenceabout his age. Thereafter, the LearnedMagistrate may proceed in
accordance withlaw. This procedure, if properly followed,would avoid a journey up to the Apex
Courtand the return journey to the grass-rootcourt. If necessary and found expedient, theHigh
Court may on its administrative sideissue necessary instructions to cope with thesituation herein
indicated.”
RAVINDER SINGH GORKHI VS. STATE OF U.P90
As in GopinathGhosh’s case, in this case toothe contention of juvenility was raised for thefirst
time before the Supreme Court. RavinderGorkhi claimed before the Supreme Court tobe a
juvenile on the date of offence, i.e., 15thMay 1979, under the then prevailing U.P.Children Act
1951. The question with regardsto the age of the accused was referred to theSessions Judge. A
School Leaving Certificatewas relied upon by the appellant wherein thedate of birth was
recorded as 1st June 1963;hence, the Sessions Judge returned a findingof juvenility. Ravinder
Gorkhi was just under16 years on the date of offence, which madehim a juvenile under the U.P.
Act.
90(2006) 5 SCC 584; 2006 CriLJ 2791 (SC).
66
The Supreme Court rejected the finding ofthe Sessions Judge and the appeal wasdismissed. The
Supreme Court observedthat, “The entries made in the school leavingcertificate, evidently had
been prepared forthe purpose of the case.” The “second Copy”and not the original school
leaving certificatewas produced in court. Moreover, theHeadmaster who gave evidence did
notproduce the admission register. This was theundoing. “The original register has not been
produced. The authenticity of the saidregister, if produced, could have been lookedinto.”
SUNIL RATHI VS. STATE OF U.P91
The question before the Supreme Court waswhether the appellant on the date ofoccurrence was a
juvenile. The High Courthad on examination of the documentary evidence held that the same did
notconclusively prove that Sunil Rathi was ajuvenile. The Supreme Court set aside theorder of
the High Court and directed that theappellant be examined by the Medical Boardto ascertain his
age.
“4. We have perused the order of the HighCourt. The High Court came to the
conclusion,after considering the certificates produced,that they did not conclusively prove that
hewas a juvenile. However, when this objectionwas raised, the petitioner was not sent
forexamination by the Medical Board to ascertainhis age. Normally, in a case where theevidence
is not clear and convincing, thereport of the Medical Board is of someassistance.”
PRADEEP KUMAR VS. STATE OF U.P92
All the three appellants were declared tohave fallen within the definition of “child”under the U.P.
Children’s Act 1951 on the dateof occurrence. The appellants, viz., Pradeep Kumar, Krishan
Kant and Jagdish, had insupport of their respective claims, a medicalexamination report, a
horoscope and a SchoolLeaving Certificate. As the appellants hadceased to be children, the
Supreme Courtobserved “there is no question of sendingthem to an approved school under the
U.P.Children’s Act for detention. Accordingly,whilst sustaining the conviction of theappellants
under all the charges framedagainst them, we quash the sentencesawarded to them and direct
their releaseforthwith.”91(2006) 9 SCC 603; (2006) 3 SCC (Cri) 351.921995 Supp (4) SCC 419; 1995 SCC (Cri) 395; AIR 1994 SC 104.
67
UMESH SINGH & ANR. VS. STATE OF BIHAR93
In this case the contention of juvenility wasnot raised before the Trial Court or the HighCourt.
The Apex Court declared the appellant Arvind Singh a juvenile on the basis of a “reportof
experts” which indicated that Arvind was “hardly 13 years old” on the date of the incident.This
“report of experts”was supported by “theschool certificate as well as the
matriculationcertificate”. The Supreme Court confirmed theconviction, but set-aside the sentence
imposedupon him and released Arvind Singh forthwith.
UPENDRA KUMAR VS. STATE OF BIHAR94
In this case too the Supreme Court upheldthe conviction and quashed the sentence.“Resultantly,
the appellant is directed to bereleased forthwith if not required in any othercase.”
SATYA MOHAN SINGH VS. STATE OF U.P95
The Trial Court convicted the appellant to lifeimprisonment for having committed anoffence
under sections 302, 307 IPC. Thesentence was upheld by the High Court. Noclaim of juvenility
had been raised before theTrial Court, but “when the question ofawarding sentence was being
considered, onbehalf of the appellant, it was pointed out thathe was fifteen years of age in
December 1980when the judgment was being delivered bythe trial court. The trial court assessed
theage of the appellant in December 1980between sixteen to seventeen years. Theoccurrence had
taken place in December1979. Therefore, even according to theestimate of the trial court, the age
of theappellant on the date of the occurrence wasfifteen or sixteen. This observation of the
trialcourt clearly shows that on the date of theoccurrence, the appellant was a child withinthe
meaning of section 2(4) of the Act.”Stating thus, the Apex Court declared theappellant a “child”,
i.e., below 16 years ofage, under the U.P. Children’s Act, upheld theconviction and quashed his
sentence.
93(2000) 6 SCC 89; 2000 SCC (Cri) 1026; AIR 2000 SC 2111; 2000 CriLJ 3167 (SC).94(2005) 3 SCC 592; 2005 SCC (Cri) 778.95(2005) 11 SCC 395.
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SAHABUDDIN ALIAS SHABOO VS. STATE OF U.P96
Apprehending that a juvenile’s incarcerationis detrimental to his well-being, the boyjuvenile was
released on bail on his father’sexecuting a bond for his son’s good conduct.“It shall be futile to
say that constantincarceration of a juvenile is a greater threatto him than his constructive
release. There isevery likelihood of his coming into contact ofknown criminals than his being
released onbail on the father furnishing bond for hisbetter upkeep and for maintaining good
behaviour towards the society.”
VIJENDRA KUMAR MALI, ETC. VS. STATEOF U.P97
The High Court whilst dealing with the subjectof a subordinate court having refused bail toa
juvenile on the ground that the offence wasa serious one, observed;
“This court in a number of judgments hascategorically held that bail to the juvenile canonly be
refused if any one of the groundsexisted. So far as the ground of gravity isconcerned, it is not
covered under the aboveprovisions of the Act. If the bail application ofthe juvenile was to be
considered under theprovisions of the Code of Criminal Procedure,there would have been
absolutely nonecessity for the enactment of the aforesaidAct. The language of section 12 of the
Actitself lays down that notwithstanding anythingcontained in the Code of Criminal Procedure,
1973 (2 of 1974) or in any other law for thetime being in force, the juvenile accused shallbe
released.”
KALYAN CHANDRA SARKAR VS. RAJESH RANJAN98
This judgment deals with the right of anaccused to file a subsequent bail applicationwhen earlier
bail application(s) have beenrejected by subordinate or higher court.
962002 CriLJ 4579 (ALLAHABAD).972003 CriLJ 4619 (ALLAHABAD).98(2005) 2 SCC 42; 2005 SCC (Cri) 489; AIR 2005 SC 921; 2005 CriLJ 944 (S.C.).
69
“But even persons accused of non-bailableoffences are entitled to bail if the courtconcerned
comes to the conclusion that theprosecution has failed to establish a primafacie case against him
and/or if the court issatisfied for reasons to be recorded that inspite of the existence of prima
facie casethere is a need to release such persons onbail where fact situations require it to do
so.In that process a person whose applicationfor enlargement on bail is once rejected isnot
precluded from filing a subsequentapplication for grant of bail if there is achange in the fact
situation. In such cases ifthe circumstances then prevailing requirethat such persons be released
on bail, in spiteof his earlier applications being rejected, thecourts can do so.”
The Supreme Court held that subsequent bailapplication(s) can be filed “if there is a changein
the fact situation or in law which requiresthe earlier view being interfered with orwhere the
earlier finding has becomeobsolete.”
SURINDER SINGH VS. STATE OF U.P99
“8. The jurisdictional issue based onpurported ages of the accused needsconsideration first.
The question relating tothe age of the accused was never raisedbefore the courts below,
necessitating adecision in this regard …Further, at no pointof time during trial or before the
High Courtthis question was raised. Further, thenecessity of determining the age of theaccused
arises when the accused raises aplea and the court entertains a doubt. Here,no claim was made
by the accused that hewas a child and, therefore, the question ofthe court entertaining a doubt
does notarise…In the aforesaid background, pleabased on purported age raised by theappellants
has no merit and is rejected.”
OM PRAKASH VS. STATE OFUTTARANCHAL100
The age recorded in the section 313 CrPC statement showed Om Prakash to be ajuvenile on the
date of offence. The claim ofjuvenility was rejected by the Supreme Courtonly on the ground
that the appellant hadopened a bank account a few months beforecommission of the offence;
“..theappellantwould not have been in a position to open theaccount unless he was a major and 99(2003) 10 SCC 26; 2004 SCC (Cri) 717; AIR 2003 SC 3811.100(2003) 1 SCC 648.
70
declaredhimself to be so.” The Supreme Court upheldthe death sentence awarded by the
TrialCourt and confirmed by the High Court.
RAM DEO CHAUHAN VS. STATE OF ASSAM101
In this case a 3-Judge Bench of the SupremeCourt did not reduce a sentence of deathpenalty to
one of life imprisonment, despitedissention from one Judge. The defense ledevidence before the
Trial Court to prove that Ram Deo was a juvenile at the time of theoffence. The father of the
petitioner wasexamined as well as the Headmaster to provethe school register that showed the
petitionerto be below 16 years on the date of offence.An associate professor in forensic
medicinewho had examined the petitioner forascertaining his age was called as a Courtwitness,
in the doctor’s opinion Ram Deowould have been between 15 to 16 years onthe relevant date.
This evidence was not ableto swerve the majority view, they instead paidcredence to the fact that
(i) on the basis of Ram Deo’s father’s cross-examination, the prosecution calculated the age of
thepetitioner as 26 years on the date ofoccurrence; (ii) a former employer gaveevidence as a
prosecution witness that priorto the incident, the petitioner had told himthat he was 20 years old;
(iii) the petitionerhad described himself as 20 years old whenhis statement was recorded on the
date ofoffence; (iv) the accused was shown as 25years 6 months in his statement recorded bythe
Trial Court 6 years after the date ofincident.
The dissenting judgment gives detailedreasons as to why the prosecution’scontention cannot be
accepted.
“19. We are unable to act on any one of thematerials projected by the prosecution forthe
purpose of reaching a conclusionregarding the age of the petitioner as on therelevant date. The
exercise of hatching orbrewing up possible date or year of birth withthe help of scattered
answers given by thefather of the petitioner, all during cross-examination,is very unsound course
to beadopted. At any rate such an exercise cannotbe sustained to the detriment of the
personconcerned. Nor can I rely on the testimony ofPW-4 who said that the accused told him
in1991 that his age was 20. Such a statementcannot be regarded as reaching anywherenear the
101(2001) 5 SCC 714; AIR 2001 SC 2231.
71
proximity of reliability for fixing upthe correct age of a person. The statementrecorded under
Section 161 of the Code is notpermitted by law to be use except forcontradicting the author of
the statement.Hence it is impermissible to look into thatmaterial also. The sheet on which
thestatement of the accused was recorded under Section 235 of the Code contains somecolumns
in the prefatory portion; one amongthem was regarding the age. The statementof the accused
actually starts only aftermaking such entries in those prefatorycolumns. Unless the person who
filled upsuch prefatory columns is examined forshowing how he gathered the
informationregarding all such columns the entriestherein cannot be regarded as legal
evidence.At any rate, we cannot proceed on apresumption that such columns were filledup by the
accused himself.”
The dissenting Judge whilst commuting thedeath sentence to life imprisonment, thoughagreeing
that the “petitioner did not succeedin proving that that he was aged below 16years on the date of
occurrence”, went on to say:
“12. But I am inclined to approach thequestion from a different angle. Can deathsentence be
awarded to a person whose ageis not positively established by the prosecutionas above 16 on the
crucial date.If theprosecution failed to prove positively thataspect, can a convicted person be
allowed tobe hanged by neck till death in view of theclear interdict contained in Section 22(1)
ofthe Juvenile Act.”
CHAPTER 7: THE LOGICAL PROBLEMS WITH THE JUVENILE JUSTICE ACT IN INDIA
The brutal Delhi gang rape case has bought forth a new aspect of criminality that India’s
justice system needs to address urgently. One of the accused, as per police record and, according
to reports, the most aggressive of the lot who brutalized the young girl, is a minor of 17 years.
Reports have shown that it was the minor who first lured the unsuspecting victims into the bus
and that he was the most aggressive in the repeated rape of the victim. In India the sentencing
and trial of juvenile offenders is mandated and governed by the Juvenile Justice Act 2000.
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Section 1(4) mandates that all cases involving detention, prosecution, penalty and sentence of
imprisonment involving juveniles shall be governed by the Juvenile Justice Act. Section 2(l)
defines a juvenile as any child who has not yet completed eighteen years of age. Section 15(1)
(g) of the JJ Act further mandates that a juvenile convicted of any offence can be sentenced to be
sent to a special home for a period of three years, maximum and thereafter be released on
probation. What this boils down to is the fact that in case the accused happens to be a juvenile
the maximum time that he shall serve is three years or 1095 days in a special rehabilitation home.
Before venturing into the merits and demerits of the Indian Juvenile Justice system it
would be prudent to see how the Western world deals with juveniles accused of horrendous
crimes. A somewhat similar, yet if possible more horrific situation arose in England in the now
infamous James Bulger Case in 1993. The two accused and convicted of torturing and murdering
a two year old child were both 10 years old at the time of the offence. They were tried as adults
and convicted for life with a minimum sentence of eight years. Police personnel look on as a
vehicle, which is believed to be carrying the accused in a gangrape and murder case, arrives at an
entrance to Saket District Court in New Delhi. AFP in England, the age of criminal
responsibility, is set at 10 years. This means that any individual above the age of 10 is considered
fully aware of the difference between right and wrong. In case of a juvenile offender, he/she can
either be tried as a juvenile or as an adult, depending again on the heinousness of the crime. In
case the offender is tried as an adult the Crown Court (the UK version of a criminal court) has in
its discretion to award the maximum amount of punishment as would be awarded to an adult.
Similarly in the United States the case of Kent v The United Case in 1966 saw a juvenile,
who was convicted of house breaking robbery and rape, tried as a major. He was sentenced to
thirty to ninety years behind bars. In fact, the Unites States has drawn a clear distinction between
juveniles as victims of an unresponsive society and those who are fully aware of the heinousness
of their crimes. The legislation of the country allows in certain cases, keeping in mind the
heinousness of the crime committed, to try juvenile offenders as adults. The justification offered
behind this waiver is to recognize the inherent and all important principle of Mens Rea or guilty
conscience. This waiver of jurisdiction by the Juvenile Board is brought about by a clear
understanding that in certain cases the board may not be adequately equipped to handle the
offender, particularly one who committed the crime knowing fully well the consequences of
73
his/her actions. Another justification offered is the prime responsibility of the State to protect
society from such offenders. By waiving its jurisdiction the juvenile court recognizes that the
offender is beyond the scope of juvenile rehabilitation and legitimizes the waiver of jurisdiction
as a means of protecting society at large from the offender.
Australia too follows a system similar to the United Kingdom. The age for criminal
responsibility in Australia is also 10 years, which means a child is not supposed to know the
difference between right and wrong if he/she is below 10 years. From 10 years to 14 years an
accused comes under what is called ‘rebuttable presumption’, this means that by default the child
is supposed to be unaware of the consequences and inherent illegality of the act committed,
however the prosecution is free to rebut this understanding. Any individual over 14 years of age
is held accountable of any crime committed by him and whether the individual is to be tried as a
minor or an adult depends again on the heinousness of the crime.
Coming back to India and the Juvenile Justice Act 2000, it is easy to notice that rather
than have a flexible procedure for sentencing we have opted for a rigid and sweeping one. This is
a system in which the maximum amount of sentence served by a delinquent who say partakes in
armed robbery in order to feed himself is the same as the one given out to a serial rapist or
murderer; just so long both are under eighteen years of age. The biggest reason for our current
system is the supposed rehabilitation of the offenders. A glimpse of this may be found in the
rechristening of the word offender to ‘Juvenile in conflict with the law’. While the swanky name
change is an earnest and somewhat romantic gesture at our societies’ endeavor in recognizing
and unleashing the ‘good’ within each child, there is an inherent problem with the term of the
sentence. There is no logical or scientific reason which shows that total and complete
rehabilitation can be achieved by a delinquent/ offender/ child in conflict with the law within a
maximum period of three years.
In the case of the Delhi rapist, even if one were to say that the boy needs to be
rehabilitated and that perhaps the reason for his barbaric and animalistic act was a deep-rooted
psychological problem, there is no assurance that the issue can be dealt with in three years. Of
course, the absolute lack of implementation of the provisions of the JJ Act after a juvenile
completes his sentence is another concern. India’s massive population makes it impossible to
track and ensure that a juvenile once released continues with his therapy or even reports
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regularly to his parole officer. With this basic and undeniable truth it is a matter of simple
calculation that in all probability the Delhi rapist shall be on the streets within the next three
years that’s 1095 days with nothing more than a stint in a special home in the name of absolute
and complete Rehabilitation.102
CHAPTER 8 :NEED TO AMEND THE JUVENILE JUSTICE LAW IN INDIA: POST THE DELHI GANG RAPE CASE
The brutal role played by the juvenile accused in the recent horrifying gang-rape of
young Nirbhaya coupled with the prospect of his being left free in about four months’ time, has
caused utter dismay, concern and outrage amongst the citizenry. It has led to demands for drastic
amendments in existing Juvenile Laws providing blanket immunity to juveniles below the age of
eighteen years from any punishment irrespective of the circumstances and nature of the crime.
The ensuing public debate, has unfolded a horrifying picture of “adult crimes”, including brutal
murder and rape of kids, being committed by juveniles, particularly between the ages of fifteen
to eighteen years. Many such crimes are repeat offences where the accused were let-off after
being put in Correction Homes without any punishment under the immunity clause. Hence there
is a demand for removing, albeit lowering the age bar at least, in cases of grave offences like
murder and rape. Also a review of Rule 12 of the concerned Rules has been demanded, enforcing
mandatory acceptance of age certificate of a given description by the Juvenile Justice
Board/Court without any further verification of its authenticity.
However, the reformist view advocated by a section of society rules out grant of harsher
punishment to minor offenders, irrespective of the gravity of their offences. Its supporters back
adoption of a correctional approach instead, insisting that stray cases should not form the basis
102http://www.firstpost.com/india/the-logical-problems-with-juvenile-justice-in-india.
75
for amending such Laws. They also plead that sharing of the same barracks with hardened
criminals may make juveniles hardened criminals themselves. Further, it is argued that many
juveniles are not criminals by nature, but are often victims of their social and political
environment, poverty and poor education.
The Central government itself appears to be divided on this issue. While Union Minister for
Women and Child Development, Smt. Krishna Tirath, has categorically ruled out any need for
amendment. The Union Home Ministry has, based on consensus arrived at a recent meeting with
state DGPs, recommended lowering of the age bar for Juvenile to sixteen years.
Obviously this examination is to be undertaken in the context of the very purpose of juvenile
enactment together with the larger objective of prevention of crime in the Society.
The very term “Juvenile” broadly denotes a person who, by virtue of his tender age, has not yet
attained sufficient maturity or understanding to judge the nature and consequences of his actions.
In law, a juvenile is considered not old enough to be held responsible for his criminal acts. Once
recognized a “Juvenile”, the law concedes immunity to him from the consequences of his action
which are in conflict with law. In India, the question whether a particular juvenile accused of
committing the crime has actually “attained sufficient maturity of understanding to judge of the
nature and consequences of his conduct”, has not been left to the determination by the Court.
Instead, Section 2 (2) of the Act lays down that “Juvenile in conflict with law” means a juvenile
who is alleged to have committed an offence and has not completed eighteenth year of age as on
the date of commission of such offence.” And as such, he would be entitled to get complete
immunity from trial through Criminal Court or any punishment under Criminal Law in view of
section 17 of the Juvenile Act.
However, these provisions are in direct conflict with Section 82 and 83 of the Indian Penal Code,
which bestows such immunity till the age of seven years only. As to the offences committed by a
child/person within the age group of seven to twelve years, Section 83 of the Code in effect
divides them into two categories; a child, “who has not attained sufficient maturity of
understanding to judge of the nature and consequences of his conduct” would get a complete
immunity, while the one, who is found to have attained sufficient mental maturity of
76
understanding the nature and consequences of his action would not be entitled to any such
protection.
The original Act introduced in 2000 put the age bar at sixteen years, which was enhanced to
eighteen years in the year 2006 only. However, the global trend on this score has been just the
reverse. In view of their own past experience, most countries are now reducing the age bar for
granting immunity to Juvenile, especially against heinous crimes.
A “Get Tough” movement is sweeping the United States in the recent time, with the
slogan “adult crime adult time”. In majority of its states (thirty eight states), the upper age of
juvenile has been fixed at seventeen years, while in three states, it has been settled at fifteen
years. Moreover all States in U.S. have now introduced provisions allowing prosecutors to try
juveniles as young as fourteen as adults under certain circumstances. In some States in U.S., such
as Indiana, South Dakota, and Vermont, children as young as ten can now be tried as adults. The
Supreme Court in the case of Stanford Versus Kentucky upheld the constitutionality of death
penalty for heinous crimes committed at the age of sixteen years. Seventeen out of fifty states of
the United State permit execution of juvenile of sixteen years old for murder as an adult. In
fact,the general tendency of State and Federal amendments in juvenile acts has been to transfer
greater number of juveniles to criminal courts for prosecution and punishment as adults.
Interestingly, the overall rate of juvenile crime has been decreasing since these changes have
been effected in the year 1995.
Of late, many states have also introduced ‘blended sentencing’, that is a mix of both juvenile and
adult sanctions to the same person, representing adoption of a middle ground between the
juvenile and adult system.
Similarly in France, no criminal charge can be brought against a child up to the age of ten years;
and for child between ten to thirteen years of age, only educational penalties such as placing in a
specialized Centre or home are to be given, while between thirteen to sixteen years of age,
minors will get only half of the adult sentence. Lastly, between sixteen to eighteen years of age,
person would be remanded to Criminal Court and plea of juvenility can be set aside.
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In U.K. and Wales, those below ten years cannot be charged with crime, between the age of ten
to eighteen, juveniles are to be tried in Youth Courts without jury, and as to serious crimes like
murder or rape, their case starts in Youth Courts but is passed on to adult Courts.
In Australia, up to age of ten years, there are no criminal charges, but between the ages of ten to
twelve, criminal prosecution is allowed if proven that the child understood that he was doing
wrong. In most states, juvenile age bar is seventeen years and in Queensland, it is sixteen years
only.
Our own experience of last twelve years has been no different. While pleading for the
maintenance of status quo in juvenile law, the reformists seem to have ignored two important
aspects related to juvenile crimes. Firstly, society, especially women, also need protection from a
juvenile who has got sufficient mental maturity and understanding of the nature and
consequences of his action, but still commits the same intentionally and in cold blood because of
his criminal bent of mind. Such hardened juvenile mostly belong to the age group of sixteen to
eighteen years.
Secondly, one of the basic object of granting befitting punishment is to create a deterrent effect,
both upon wrong-doer as well as on others members of Society. Mere knowledge of the fact that
one can escape any punishment may make a juvenile more reckless and dangerous. It may also
encourage adult accomplices in such crimes to push the onus for the gravest aspects of such
crimes on the juvenile, thereby escaping full punishment themselves.
It is also argued by reformists that our correction homes do not have proper correctional
facilities. But this argument can cut both sides. Further, the Western experience, where superior
institutional and correctional facilities exist, is no better. We should, therefore, amend the
Juvenile Justice Law in a way that ensures that those juvenile who commit a heinous crime with
a full understanding of their action are not let off without a trial by a criminal court while, at the
same time, granting a lenient treatment to a juvenile found to have been waylaid in the particular
facts of the case and who had not understood the nature and consequences of his action at that
time.
Thus, the new law may provide for initial reference and retention of every accused
Juvenile to the care of Juvenile Board until it is satisfied (after obtaining expert opinion which
78
should be mandatory) that the accused juvenile did possess sufficient maturity of understanding
to judge of nature and consequences of his conduct on that occasion, hence deserving to be
referred to Criminal Court for trail of his offence. Where the finding is to the contrary, the
juvenile in question may be retained under the care of Juvenile Justice Board. The decision of the
Juvenile Justice Board should be open to judicial review at the level of the High Court.
A further provision may be made in the Act/Rules that a Juvenile in conflict with law, who has
been found liable to be referred to Criminal Court for trial in the above manner, would be
retained in protection home until the court finally adjudicates him to be guilty and awards
sentence. Even after award of sentence, special wards can be created in jails for keeping
juveniles in order to avoid their co-habitation with hardened criminals. Alternatively, the law
may provide for some reduced punishment, as is prevalent in France.
Similarly, given existing levels of illiteracy and inefficiencies in administration, the authenticity
and accuracy of birth certificates, even municipal certificates is often questionable.
Therefore it would be reasonable to reduce the upper age limit for treating a person as
juvenile to sixteen years as before. Rule 20 of the Juvenile Rules 2007 should also be modified to
provide that in cases where the accused person claims to be within the threshold age (if the age
bar is eighteen, then between sixteen to eighteen years) the court can verify accuracy of such
certificates by referring the accused to medical examination by a duly constituted Medical Board.
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CHAPTER 9: The Juvenile Justice (Care & Protection of Children) Bill, 2014
A juvenile or child is a person less than 18 years of age. Under Section 82 of the Indian
Penal Code (IPC), the minimum age at which any person can be charged for a crime is seven
years. The Juvenile Justice (Care and Protection of Children) Act, 2000 addresses children who
are in conflict with law and children in need of care and protection.2 The Act was brought in to
adhere to the United Nations Convention on the Rights of the Child (UNCRC) which was
ratified by India in 1992. As a signatory, India is required to undertake all appropriate measures
to ensure the rights of children with regard to juvenile justice, care and protection, adoption, etc.
As per 2011 census data, juveniles between the ages of seven to 18 years constitute about 25% of
the total population.3
According to the National Crime Records Bureau (NCRB), the percentage of juvenile
crimes as a proportion of total crimes has increased from 1% to 1.2% from 2003 to 2013. 4
During the same period, 16-18 year olds accused of crimes as a percentage of all juveniles
accused of crimes inCHAcreased from 54% to 66 %. The types of crimes committed by juveniles
in the 16-18 year age group vary as seen in Table 1. Over the years, courts have looked at
various cases regarding juveniles committing crimes under the Juvenile Justice Act, 2000, and
have recommended reviewing the Act with regard to issues related to implementation of the Act,
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stringent penalties, etc. 5, 10 The Juvenile Justice (Care and Protection of Children) Bill, 2014
was introduced in LokSabha on August 12, 2014 to address crimes committed by juveniles,
children in need of protection, their rehabilitation and adoption processes, etc
9.1 Key Features
The Bill seeks to replace the Juvenile Justice (Care and Protection of Children) Act,
2000.
Children in Conflict with Law
Juvenile Justice Boards (JJBs) will be constituted in each district to deal with children in
conflict with law. They will consist of a Metropolitan or Judicial Magistrate and two social
workers, including a woman.
Offences committed by juveniles are categorized as: (i) heinous offences (those with
minimum punishment of seven years of imprisonment under IPC or any other law), (ii)
serious offences (three to seven years of imprisonment), and (iii) petty offences (below
three years of imprisonment). A juvenile cannot be given life imprisonment without the
possibility of release or death penalty.
Under the Bill, a juvenile in conflict with law can be required to spend a maximum of
three years in a special home or fit facility. However, juveniles in the age group of 16-18
years may be tried as adults in certain cases. Any person who is between the ages of 16-18
years and has committed a heinous offence may be tried as an adult, irrespective of date of
apprehension. Also, a juvenile between 16-18 years of age who has committed a serious
offence and apprehended after the age of 21 years, may be tried as an adult.
In all other cases, juveniles will get a maximum of three years in institutional care, as
determined by the JJB.
In case of heinous offences, if a juvenile is apprehended before 21 years of age the JJB
will conduct a preliminary inquiry. This will determine his mental/physical capacity to
commit an offence and an understanding of its consequences. The JJB will then pass an
order that recommends: (i) interventions like counseling or community service; (ii) staying
at an observation home for a temporary or long-term period; or (iii) refer the juvenile to a
Children’s Court to determine whether to try him as an adult.
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Children’s Court is a Sessions Court notified under the Commissions for Protection of
AChild Rights Act, 2005. For the purposes of this Bill, once a juvenile is referred by a JJB
to a Children’s Court it will determine whether to try him as an adult or else recommend
counseling, stay at observation home, etc.
9.2 Children in Need of Care and Protection
Child Welfare Committees (CWCs) will be constituted in each district to deal with
children in need of careand protection. They will be composed of a chairperson and four
other members who shall be experts on matters relating to children.At least one of the four
members will be a woman. Table 1: Juveniles between 16-18 years apprehended under IPC
Crime 2003 2013 Burglary 1,160 2,117 Rape 293 1,388 Kidnapping/abduction 156 933
Robbery 165 880 Murder 328 845 Other offences 11,839 19,641 Total 13,941 25,804 Note:
Other offences include cheating, rioting, etc. Source: Juveniles in conflict with law, Crime
in India 2013, National Crime Records Bureau. The Juvenile Justice (Care and Protection
of Children) Bill, 2014 PRS Legislative Research April 20, 2015 - 3 –
A child who is found to be in need of care and protection shall be brought before a CWC
within 24 hoursSubsequently, a Social Investigation Report is required to be prepared
within 15 days. After assessing the report, the CWC may recommend that the child be
sent to a children’s home or another facility for long term or temporary care, or declare
the child as free for adoption or foster care.
9.3 Offences and Penalties
The offence of assaulting, abandoning, abusing, or willfully neglecting a child will attract
a punishment of up to three years of imprisonment and/or a fine of one lakh rupees. The
penalty for employing a child for the purpose of begging will lead to an imprisonment of
up to five years and a fine of one lakh rupees.
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A person who gives a child an intoxicating or narcotic substance will be liable for
imprisonment up to seven years and a fine extending up to one lakh rupees. The penalty
for selling or buying a child for any purpose will be imprisonment up to five years and a
fine of one lakh rupees.
9.5 Other Provisions
Adoption : The Central Adoption Resource Agency will frame regulations on adoption.
These regulations will be implemented by state and district agencies. Prospective adoptive
parents should be physically and financially sound. A single or divorced person may adopt
a child. A single male may not adopt a girl child. The Bill also provides for inter-country
adoption.
Registration of institutions: Institutions for child care having a valid registration under
the 2000 Act will continue to be recognized. Other institutions are required to be
registered within six months of this Bill coming into force. The registration is valid for
five years and needs to be renewed. Inspection committees will inspect these institutions
and registration may be cancelled if they do not meet the prescribed criteria.
9.6 Key issues and analysis
16-18 year olds accused of certain offences may be tried as adultsThe Bill states that 16-18 year old juvenile offenders may be tried as adults in certain cases.
There are differing views on whether juveniles should be tried as adults. Recently, the Supreme
Court while hearing a case related to juvenile crime observed that the 2000 Act needs to be
reviewed due to increasing heinous offences by juveniles. The law needs to deter juveniles from
committing heinous crimes and safeguard the rights of victims. For crimes like rape and murder
it is hard to conceive that the juvenile is not aware of the consequences. 6 However, the Standing
Committee examining the proposed Bill observed that 16-18 years is a sensitive and critical age
requiring greater protection. 7 Other experts have argued that a criminal justice system that has a
reformative and rehabilitative approach towards juvenile offenders may reduce cases of repeat
offences. They say that under the current law, juvenile crime has only shown a marginal increase
over the past few years.
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Noncompliance with the UNCRC in treatment of 16-18 year age group
The Bill requires certain juveniles between the ages of 16-18 years to be tried as adults with
regard to specific offences. This provision is not in accordance with the UNCRC, as ratified by
India, and mentioned in the Bill’s Statement of Objects and Reasons. The Standing Committee
observed that the Bill violates the UNCRC as it differentiates between children below 18 years
of age. The UNCRC states that signatory countries should treat every child under the age of 18
years in the same manner and not try them as adults. It recommends that those countries that treat
or propose to treat 16-18 year olds as adult criminals, change their laws to align with the
principle of non-discrimination towards children. The 2000 Act was enacted to implement the
UNCRC guidelines in the Indian context. Unlike the Bill, the 2000 Act complies with the
UNCRC guidelines and does not distinguish between persons below the age of 18 years.
However, many other countries try juveniles as adults, in case of certain crimes. All of these
countries, except the United States, have ratified the UNCRC. In the Annexure on the last page,
we compare criminal laws in these countries with regard to treating juvenile offenders as adults
9.7 Juvenile apprehended after 21 years of age for serious/heinous offences
Possible violation of Articles 14, 21 and 20(1) of the Constitution
Clause 7 of the Bill states that any person who is between the ages of 16-18 years and has
committed a serious (between three to seven years imprisonment) or heinous offence (minimum
seven years imprisonment), will be Bill: Clause 16(1) UNCRC: General Comment 10 Act:
Section 15(f) The Juvenile Justice (Care and Protection of Children) Bill, 2014 PRS Legislative
Research April 20, 2015 - 4 - tried as an adult if he is apprehended after the age of 21 years
(subject to other provisions of the Bill). This provision could violate some Fundamental Rights
guaranteed by the Constitution.
Article 14 states that every person shall be treated equally before law. It has been interpreted that
unequal treatment may be permitted between different sets of people only if there is a clear
public purpose sought to be achieved by such unequal treatment. The Bill creates a distinction
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between two juvenile offenders committing the same offence on the basis of the date of
apprehension. It is unclear what public purpose is being achieved by differentiating between two
individuals, committing the same offence, on the basis of date of apprehension. Table 2 below
demonstrates the implications of this provision.
Article 21 states that no person can be deprived of their right to life or personal liberty, except
according to procedure established by law. Courts have interpreted this to say that any law or
procedure established should be fair and reasonable.9 The differentiation based on the date of
apprehension may fail this standard. In 2005, a Constitution Bench of the Supreme Court, while
determining the age of a juvenile and the resulting penalty (under the 2000 Act and an earlier
1986 Act) decided that the date on which the offence is committed matters, and not the date of
apprehension.10 The provision of the Bill mentioned above contradicts this ruling of the
Constitution Bench, and considers the date of apprehension when deciding the penalty given to a
juvenile. Article 20(1) of the Constitution states that a person cannot be subjected to a penalty
greater than what would have been applicable to him, under a law in force at the time
ofcommission of the offence. Under the Bill, if a juvenile between the ages of 16-18 years
commits an offence and is apprehended at a later date, he may face a higher penalty than what
would be applicable to him if he had been apprehended at the time of commission of the offence.
This provision does not directly contradict Article 20(1) as provisions of the Bill do not apply
retrospectively. However, if the spirit of Article 20(1) is that a person should not get a penalty
higher than what would be applicable at the time of commission of the offence, then this
objective is not being met by the bill.
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Bibliography, SUNIL K BHATTACHARYA ,JUVENILE JUSTICE IN INDAIN SCENARIO
Ahmad Siddique, Criminology Problems & Perspective (5th ed., 2007)
N.V. Paranjape, CRIMINOLOGY AND PENOLOGY (13th ed., 2008)
S. S. Srivastava, Criminology and Criminal Administration (3rd ed.,
2007)
J.P.S. Sirohi, CRIMINOLOGY AND PENOLOGY (6th ed., 2007)
RONALD J. BURGER, JUVENILE DELIQUENCY AND JUSTICE,
CONSTITUTION OF INDIA
K R KELKAR, CODE OF CRIMINAL PROCEDURE
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