JAMIA MILLIA ISLAMIA
Juvenile Justice Justice Act Act Changing Dimensions! Sharique Raza
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 completion of this project report without which my efforts would have been in vain. I am thankful to the Librarians, Faculty of Law, Jamia illia Islamia for helping me in collecting the relevant material for my project report. I would like to e!tend my sincere thanks to my friends and family for their constant review and honest remarks.
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CHAPTER-I
INTRODUCTION
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CHAPTER -2 LITERATURE REVIEW
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)ibliography
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List o Cases
Arnit Das vs. State of Bihar: *1===- "22 @::D 1=== "22 *2ri- ;81D AI$ 1=== "2
118@D 1=== 2riLJ 1;>< *"2-. BabanKhandu Rajput vs. State of Maharashtra: 1==1 All$*2ri- <7>7. BholaBhagat vs. State of Bihar: *<;;>Bihar: *<;;>- : "22 >1=D AI$ <;;: "2 178. BholaBhagatVs. State Of Bihar: *<;;>Bihar: *<;;>- : "cc >1=D >1= D Air Air <;;: "c 178. 178 .
Bhoop Ram vs. State of .!.: .!.: *<;:;- 7 "22
*<;:;- 1 2rimes 1;@.
Dattatra" #. San$he vs. State of Maharashtra %Ors. B 1==7 All$*2ri- <8;7 *)ombay-D
Dilip K. Basu vs. State of &e &est st Bengal %Ors.B %Ors.B *<;;>- < "22 @<8D <;;> "22 *2ri- ;1D AI$ <;;> "2 8<=.
#opinath#hosh vs. State of &est Bengal: <;:@ Bengal: <;:@ "22 *2ri- @>:D AI$ AI$ <;:@ "2 17>D <;:@ 2riLJ <8: *"2-.
#opinath#hosh Vs. State Of &est Bengal: <;:@ Bengal: <;:@ "upp"cc 11:D <;:@ "cc *2ri- @>:D Air <;:@ "c 17>D <;:@ 2rilj <8: *"c-. 'a"a Mala Vs. (ome Se)retar"* Se)retar"* #overnment Of 'ammu % Kashmir: *<;:1Kashmir: *<;:1- 1 "cc 7:D <;:1 "cc *2ri- =1D Air <;:1 "c <1;>D <;:1 2rilj <>>> *"c-.
'a"a Mala vs. (ome Se)retar"* Se)retar"* #ovt. of '%K: *<;:1'%K: *<;:1- 1 "22 7:D AI$ <;:1 "2 <1;>D <;:1 2riLJ <>>>*"2-.
'a"endra%Anr. vs. State of ttar !radesh : *<;:<- @ "22 <@;D <;:< "22 *2ri- :=;D AI$ <;:1 "2 8:.
Kal"an +handra Sar$arVs. Rajesh Ranjan: *1==Ranjan: *1==- 1 "cc @1D 1== "cc *2ri- @:;D Air
1== "c ;1
%Ors: 1==7 %Ors: 1==7 2rilj @11 *)om-. Master Salim-$ramuddin Ansari %Anr. %Anr. Vs. Offi)er,-n,+harge* Offi)er,-n,+harge* Borivali !oli)e Station*
Mumbai %Ors: 1== %Ors: 1== 2rilj >;; *)om-. Om !ra$ashVs. State Of ttaran)hal: *1==7ttaran)hal: *1==7- < "cc 8@:. !radeep Kumar Vs. State Of .!: <;; .!: <;; "upp *@- "cc @<;D <;; "cc *2ri- 7;D Air <;;@ "c <=@.
!radeep Kumar vs. State of ttar !radesh: <;; !radesh: <;; "upp*@- "22 @<;D <;; "22 *2ri- 7;D AI$ <;;@ "2 <=@.
!ratap Singh vs. State of 'har$hand %Ors.: AI$ %Ors.: AI$ 1== "2 1>7
!rerna vs. State of Maharashtra %Ors.: 2riminal 4rit 4rit ?etition o.<8;@ of 1==7.
Rahul Mishra vs. State of M.!.: M.!.: 1==< 1==< 2riLJ 1<@ *.?.-.
Raisul vs. State of .!. .!.: *<;>8- @ "22 7=
8 "22 *2ri- 8<7D AI$ <;>> "2 <:11D
<;>> 2riLJ < *"2-. Raj Singh vs. State of (ar"anaB (ar"anaB *1===- 8 ""2 >;D 1=== "22 *2ri- <1>=. Rajinder +handra Vs. State Of +hhatisgarh%Anr: *1==1+hhatisgarh%Anr: *1==1- 1 "cc 1:>D Air 1==1 "c >@:D
1==1 2rilj <=<@ *"c-.
Rajinder +handra vs. State of o f +hhattisgarh: *1==1+hhattisgarh: *1==1- 1 "22 1:>D AI$ 1==1 "2 >@:D 1==1 2riLJ <=<@ *"2-.
Ram Deo+hauhanVs. State Of Assam: *1==<@D Air 1==< "c 117<. Ranjit Singh vs. State of (.!.: (.!.: 1== 1== 2riLJ ;>1 *#.?.-. Ravinder Singh #or$hiVs. State Of .!: *1==8.!: *1==8- "cc :@D 1==8 2rilj 1>;< *"c-. Sahabuddin Alias Sha booVs. State Of .!.: .!.: 1==1 2rilj @>; *Allahabad-. Sanja" Suri%Anr. Vs. Delhi Administration* Delhi %Anr: <;:: %Anr: <;:: "upp"cc <8=D <;:: "cc
*2ri- 1@:D Air <;:: "c @<@D <;:: 2rilj >= *"c-. Sat"a Mohan Singh Vs. State Of .!. .!.: *1==- << "cc 7;.
Sat"a Mohan Singh vs. State of ttar !radesh: *1==!radesh: *1==- << "22 7;.
SheelaBarse vs. nion of -ndia: *<;:8-ndia: *<;:8- 7 "22 871D *<;:8- "22 *2ri- 71D <;:8 2riLJ <>78 *"2-.
Smt. Kamlesh%Anr. vs. State of .!. B 1==1 2riLJ 78:= *Allahabad-.
State Of Karnata$a Vs. (arshad: 1== (arshad: 1== 2rilj 17> *3arnataka-. Sunil RathiVs. State Of .!: *1==8.!: *1==8- ; "cc 8=7D *1==8- 7 "cc *2ri- 7<.
Surinder Singh vs. State of .!.: *1==7.!.: *1==7- <= "22 18D 1==@ "22 *2ri- ><>D AI$ AI$ 1==7 "2 7:<<.
Surinder Singh Vs. State Of .!.: *1==7.!.: *1==7- <= "cc 18D 1==@ "cc *2ri- ><>D Air 1==7 "c
7:<<. mesh +handra vs. State of Rajasthan B *<;:1- 1 "22 1=1D <;:1 "22 *2ri- 7;8D AI$ <;:1 "2 <=>D <;:1 2riLJ ;;@ *"2-.
mesh Singh %Anr. vs. State of Bihar : 1=== : 1=== "22 *2ri- <=18D AI$ 1=== "2 1<< *"2-. 8
mesh Singh %Anr. Vs. State Of Bihar: *1===Bihar: *1===- 8 "cc :;D 1=== "cc *2ri- <=18D Air 1=== "c 1<< *"c-.
pendra Kumar vs. State of Bihar: *1==Bihar: *1==- 7 "22 ;1D 1== "22 *2ri- >>:.
pendra Kumar Vs. State Of Bihar: *1==Bihar: *1==- 7 "cc ;1D 1== "cc *2ri- >>:. Vijendra Kumar Mali* et). vs. State of .!.: 1==7 .!.: 1==7 2riLJ @8<; *Allahabad-. Vijendra Kumar Mali* t). Vs. Stateof .!.: 1==7 .!.: 1==7 2rilj @8<; *Allahabad-. Vi$$" alias Vi$ram Singh vs. State of .!.: 1==7 .!.: 1==7 2riLJ 7@> *Allahabad-D
LIST O" A##$E%IA A##$E%IATIONS TIONS • • •
Anr.:Another APP:Additional ?ublic ?rosecutor 2h ildren Act BCA:/he )ombay 2hildren >
• • • • • • • • • • • • • • • •
CAS:2hildrenEs Aid Aid "ociety CRC: /he &nited ations 2onvention on the the $ights of the 2hild CrPC: 2riminal ?rocedure 2ode CWC: 2hild 4elfare 2ommittee IPC: Indian ?enal 2ode JJA: /he Juvenile Justice Act <;:8 JJA: /he Juvenile Justice *2are1=== and ?rotection of 2hildren-Act 1=== JJB: Juvenile Justice )oard NO: on6overnmental +rganisation Or!.: +thers PO: ?robation +fficer PP: ?ublic ?rosecutor SIR: "ocial Investigation $eport SJPU: "pecial Juvenile ?olice &nit TIP: /est Identification ?arade UOI: &nion of India
A#ST$ACT /his study was aimed at understanding the causes behind juvenile delinuency, and the measures that are being taken for the positive development of the children in conflict with law. /he influence of the media on the psychosocial development of children is profound. 4ith advent of communication technology in recent times, a childEs e!posure to media including television, radio, music, video games and the Internet, has increased manifold. /herefore, it was planned to study whether the impact of recent changes in the society on juvenile delinuency is significant. /he socioeconomic profile, factors behind the delinuency, the rehabilitative mechanisms and its effectiveness were analyGed by using the primary data collected by interviewing = inmates of the 6overnment +bservation #ome #ome of
&jjaw &jjawal al childr childrens ens for boys, boys, Lajpat Lajpat agar agar,, ew 5elhi 5elhi and &day 2hildre 2hildren n
#omes for boy Lajpat agar,ew 5elhi.+ut of these = cases of delinuency, cases of offence were also analyGed in detail using case study method. /he data was collected by using the structured uestionnaire and interview. /he results indicated that the offences made by the delinuents were primarily due to the combination of various individual and
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environmental variables, viG. individual risk factors of the delinuents, negligence and ignorance of the parents, peer influence, poor socioeconomic status, family pressure and lack of proper socialiGation. 5irect impact of media was not pronounced in the findings of the study, e!cepting a few cases of theft. +verall, the perception regarding fairness of justice, both before and after the offence, was reported to be positive by the respondents. /he results results also also indic indicate ated d that that owing owing to lack lack of funds funds and resource resources, s, the positive positive development measures for the juveniles were conspicuous by their absence. Findings were interpreted in the light of current conceptualiGations in the area of the study and their implications for future were pointed out.
CHAPTER-1 INTRODUCTION
&'&NT$OD(CTION A child is born innocent and if nurtured with tender care and attention, then heCshe grows in positive way. ?hysical, mental, moral and spiritual development of the children makes makes them them capabl capablee of realiG realiGing ing hisChe hisCherr fulles fullestt potent potential ial.. +n the contra contrary ry,, harmfu harmfull surroundings, negligence of basic needs, wrong company and other abuses may turn a child to a delinuent. 4ith changing societal trends, children now appear to possess strong likes and dislikes and also show e!pressions that indicate maturity at a very early age. /hese ualities also make children more vulnerable to the designs of the criminality such as abusers, peddlers, and traffickers. oreover, the influence of the media on the psychosocial development of children is profound. 4ith 4ith advent of communication technology in recent times, a childEs e!posure to media including television, radio, music, video games and the Internet, has increased manifold. 2hildren constitute about @=H of ;
IndiaEs population and India has a ational ?olicy for 2hildren declaring children to be a nati nation onal al asse asset. t. 'ven 'ven so majo majori rity ty of Indi IndiaE aEss chil childr dren en cont contin inue ue to be in diff diffic icul ultt circumstances. India has signed the & 2onvention on the $ights of the 2hild and obliga obligated ted itself itself to work work toward towardss ensuri ensuring ng all the rights rights enshri enshrined ned therei therein n to all its children. India has witnessed an increase both in crimes committed by children and those committed against them. /here has been ;>.;H increase in crimes committed by children between 1==7 and 1==@, with more children being appeared for arson, theft and cheating. +ver 77,=== juveniles, mostly between the age group of <8 to <:, have been arrested for crimes like rape and murder across Indian states in 1=<<, the highest in last decade. According to a #ome inistry data, of the total of 77,7:> juveniles apprehended in 1=<<, 1<,8> were in the <8<: age group, <<,=<; of <1<8 age group and <,1<< between ><1 age group *?/I, 1=<7-.4hereas, 71,<@ such youngsters below <: years of age were held in 1==8, 7@,1> in 1==>, 7@,=> in 1==:, 77,8@1 in 1==; and 7=,7=7 during 1=<=, the data said. /he data also shows increasing cases of rape by juveniles. As many as <,@<; such cases were recorded in 1=<< as compared to 7;; cases in 1==<, it said. It is pertinent to mention that a juvenile and five others were arrested by 5elhi ?olice for brutally raping and assaulting a 17yearold girl in the national capital on 5ecember <8, 1=<1. /he victim later succumbed to her injuries. 7 /he cases of murder by juveniles have also shown a surge in last ten years. As many as 7< youngsters below the age of <: were apprehended for murder in 1==< as against ::: arrests between January and 5ecember 1=<<. According to the data, 8,>>= juveniles were arrested in aharashtra, ,>;@ in adhya ?radesh, 1,8;1 in 2hhattisgarh, 1,@1 in $ajasthan and 1,<= in 6ujarat among others in 1=<<. In the same year, a total of 1,@>@ adolescents were arrested in Andhra ?radesh, 1,=:7 in /amil adu, <,1=@ in &ttar ?radesh and <,<18 in )ihar, the data said. +f the total number of juveniles arrested in 1=<< under different sections of I?2 and "pecial and Local Laws *"LL-, 8,<11 were illiterate, <1,:=7 were primary pass outs, <=,<; were above primary and below matriculation ualified and @,@@7 were metric and higher secondary ualified, the data said. A total of 1>,>> juveniles, who were held for criminal acts, were living with parents, @,7:8 were living with guardians and <,;1@ were <=
homele homeless, ss, the data data said said giving giving detail detailss of their their family family backgr backgroun ound. d. /here /herefor fore, e, it is imperative to understand the concept of juvenile delinuency and delineate the conditions giving rise to high rates of crimes and conflicts with law.
Juvenile Delin)uenc* /he word juvenile has been derived from the Latin term juvenis, which means young and etymol etymologi ogical cally ly,, and the word word delin delinuen uency cy has been been derive derived d from from the Latin Latin word word delin delinuer uer which which means means to omit. omit. In the year <@:@, <@:@, 4illia illiam m 2o!ton 2o!ton used the word delinuent to describe a person who was found guilty. Juvenile delinuency refers to the involvement by the teenagers in an unlawful behavior who is usually under the age of <: and commits an act which would be considered as a crime. A child is known as a delinuent when heCshe commits a mistake which is against the law and which is not accepted by the society. /hus 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 legal age of maturity. "ince the human civiliGation, crime has been one of the dominant problem which occurs when someone breaks the law by an e!plicit 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 delinuent. &sually 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 doesnEt know the @ law even e!ists. /he phrase ignorance of the law is no e!ception means that a person can be held responsible even when he or she break a law which they donEt know. /herefore, 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, andCor death. o conduct constitutes a crime unless it is declared as criminal in the laws of the country. "ome crimes such as theft or criminal damage may be civil wrongs for which the
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victim may claim damages in compensation. 5elinuent and criminal behavior may abou abound nd amon among g youn young g peop people le,, as they they nego negoti tiat atee the the tran transi siti tion on from from chil childh dhoo ood d to adulthood in an increasingly comple! and confusing world. A child child is a part of the society in which he lives and the social relations that ensure a smooth process of socialiGation socialiGation are collapsi collapsing. ng. /he traditiona traditionall patterns patterns of relationsh relationships ips guiding guiding transiti transitions ons between between the family, school, and work are collapsing nowadays for many young people. Lifestyle is becoming more varied and less predictable. owadays many youths regardless of gender, social origin, are subject to individual risks. any 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. /o criminologists, juvenile delinuency encompasses all public wrongs committed by young people between the ages of <1 and 1=. )ut 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. "ociologists associate the youth behavior with the home, home, family family,, neighb neighborh orhood ood,, peer peer,, and many many other other variab variables les that that togeth together er or separately influence the formation of young peopleEs social environment.
"amil* an+ Envi,onment va,iales /he antisocial behavior may be a part of growing up or the beginning up of a longterm pattern of the criminal activity. activity. /he peer groups play an important in the construction of delinuent 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 social conte!t that provokes his actions. It is also seen that children in urban and semi 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 well as in a community level. level. In such situation parents fail fail to give a proper guidance. 5ue to 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
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increase in the number of delinuency among children. /here are three different levels by whic which h a bett better er unde unders rsta tand ndin ing g abou aboutt a juve juveni nile le deli delin nue uenc ncy y can can be made made such such as indivi individua duall level, level, micros microsoci ocial al level, level, and macro macrosoc socia iall level. level. At the indivi individua duall level level it focuse focusess on the person personali ality ty traits traits,, intell intellige igence nce,, routin routinee activ activiti ities es of adole adolesce scents nts,, and characteristics of individual either innate or learned. At microsocial level, delinuency is a micro aspect and criminologists stressed on the relationship ties, associations with the delinuent friends and the social process by which an individual becomes the kind of people who commit delinuent acts, acts, especially the delinuent delinuent peer group influence at this level. In the macrosocial level, the societal characteristics such as social class, social cohesiveness and social disorganiGation of neighborhood is used to e!plain delinuency. 5ue to the immaturity of the child, heCshe easily gets motivated by what heCshe sees around himCher. It is the environment and social conte!t that provokes his actions. In a developing country like India, juvenile crimes are steadily rising due to the persistent poverty, unemployment, ineualities and changing values, etc. inspite of these factors 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 freedom from the parents, parents, social social maladjus maladjustment tment,, and family family disintegr disintegration ation.. Juvenile Juvenile delinuency is a problem which despite of different and varied cultural backgrounds is found with common characteristics universally. &nder the Indian law, children between ><1 ><1 year yearss of age age havi having ng suff suffic icie ient nt matu maturi rity ty and and betw betwee een n <1< <1<: : year yearss who who have have committed an offence are responsible for their criminal list. )ut 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 delinuency 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 se!, and theft and other petty crimes.
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Statistics o -uvenile +elin)uenc* According to the latest ational 2rime $ecord )ureau *2$)- report 1=<1, crimes involving children have increased from =.: H *1==<- to <<.: H *1=<<-. /his report also shows the data on juvenile delinuency that children apprehended under both Indian ?enal 2ode *I?2- and "pecial and Local Law *"LL- has increased from 7=,7=7 *1=<=- to 77,::> *1=<<-. In addition to other crime heads, kidnapping and abduction committed by juveniles have also registered a noticeable noticeable increase from 1==: to 1=<<. 4hile kidnapping and abduction committed by a juvenile was recorded at 7@ in 1==: and it inflated to :17 during 1=<<. 2$) data also shows that there are a growing number of girl children in criminal activities and it estimated that from .< H *1=<=- which increased to .: H *1=<<-. 2$) 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 icole aneGes pointed out that only <.< H of all I.?.2 I.?.2 crimes were committed by the juveniles in the year 1=<<. It has been claimed by the news channels that children who are under <: years of age are committing heinous crimes and day by day it is rising. According According to the 2$) *1=<<-, only <.< H of all I.?.2 were committed by the juveniles, and @. H of all crimes committed by the juveniles were rape and only 7. H of all rapes were committed by the juveniles. In a ational "tudy on child abuse *1==>-, the inistry of 4omen 4omen and 2hild 5evelopment found that two out of every three children had been physically abused, and 7.11 H of children reported that they faced se!ual abuse.
Juvenile -ustice act an+ -uvenile -ustice oa,+ oa,+ B /he juvenile justice in India was originated in <:= for those who were convicted in the court and was thus essential for the children between the ages of <=<: to provided vocational training as a part of their rehabilitation process. /he Juvenile Justice Act *1===-, was put into action on
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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. /he term KjuvenileE was no more used because it was considered as an offenderD rather this term was mentioned as a child in need of care and protection. /he "upreme 2ourt of India has ruled that when the enactment is silent on certain points then one is to refer to the preamble of the act. /he /he preamble of the JJ act speaks speaks > 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 )oard demeanors the inuiry against juvenile who is alleged to have acted in conflict with law. /he practice for dealing with juvenile is reuired to be child friendly and rehabilitation preoccupied with and not adversarial. /he )oard encompasses of a judicial magistrate and two social workers, whose powers are coe!tensive with the magistrate. /he sittings of a board are held within the premises of the +bservation #ome which does not looks like a court room rather it is made more childfriendly room.
Ose,vation .omesB +bservation #ome is intended for the temporary reception of any juvenile in conflict with law during the pendency of any inuiry against him C her. /he children who are under the age of <: years are admitted in this home by the police. /he state government provides various types of services in the +bservation #ome 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 heCshe is initially sent to an +bservation #ome where they are kept and are provided with proper mental and physical care according to their different age groups. /he main aim of the +bservation #ome is to bring the best interest of the child i.e. right to education, right to protection, right to survival, and right to participation.
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S/ecial .omeB /here is another institution which is called as a "pecial #ome which is established under an agreement with the voluntary organiGation. 4hen a child is found guilty and is declared convicted then heCshe is given a three years of conviction and thus is sent to the "pecia "peciall #ome. #ome. For the the resoc resocial ialiG iGati ation on of a juveni juvenile le variou variouss types types of servic services es are provided by the state government. 4ith 4ith rising statistics of rates of juvenile crimes and changing social dynamics, it is essential to probe deeply into the underlying causes of juvenile delinuency in the present times and find out the ways and means to reduce its occurr occurrenc ences es throug through h approp appropria riate te steps steps.. /he /he presen presentt study study was was design designed ed with with this this objective and the following states the specific objectives of this study
&'0 O#JECTI%ES O" T.E ST(D1 /he objectives of the study are
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/o illustrate illustrate the role of individual characteristics and environmental background variables variables in juvenile juvenile delinuency delinuency by using case study study method. /o e!amine e!amine the
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perception of fairness fairness of justice among among the juvenile delinuents. delinuents. /o e!ami e!amine ne the the e!tent e!tent to which which the the Juveni Juvenile le Justic Justicee ?rogra ?rogramme mme empha emphasi siGe Ge
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building on strength and ?ositive ?ositive 0out 0outh h 5evelopment.
&'2 .13OT.ESIS It is hypoth hypothesi esiGed Ged that that the both both indivi individua duall and e!isti e!isting ng enviro environme nmenta ntall condit condition ionss reflecting societal changes are responsible for committing delinuency among children. /he delinuents will demonstrate positive perceptions of the police and officials of the observation home. Juvenile Justice ?rogrammes will be found to build on strength and ?ositive 0outh5evelopment. /here must be the provision of all facilities which helps in the positive development of the delinuents.
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&'4 CONCE3T(AL "$AMEWO$K /here /here are are three three diffe differen rentt level levelss by which which a better better unders understan tandin ding g about about a juveni juvenile le delinuen delinuency cy can be made, made, such as individual 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, delinuency is a micro aspect and criminologists stressed on the relationship ties, associations with the delinuent friends and the social process by which an individual becomes the kind of people who commit delinuent acts, especially the delinuent peer group influence at this level. In the macro social level, the societal characteristics such as social class, social cohesiveness and social disorganiGation of neighborhood is used to e!plain delinuency. delinuency. According to S"r#$n "%&'r(, *Agnew, <;;1-, people engage in crimes as they e!perience strain or stress, they become upset, and they sometimes engage in crime as a result. /hey may ; engage in crime to reduce or escape from the strain they are e!periencing. For e!ample, 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. /hey 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. /wo general categories of strain that contribute to crime are described B*<- others prevent you from achieving your goals, and *1- others take things you value or present you with negative or no!ious stimuli. 4hile strain may result from the failure to achieve a variety of goals goals,, the failur failuree to achiev achievee three three relate related d goalsB goalsB money money,, statu statusCr sCresp espect ect,, andf andfor or adolescentsautonomy adolescentsautonomy from adults, may lead to crime. S')$#* S')$#* +$!'r,#n$# +$!'r,#n$#"$'n "$'n "%&'r( "%&'r( *"ha *"haw w and and c3a c3ay y, <;@1 <;@1DD <;8; <;8;-- seek seekss to e!pl e!plai ain n
commun communit ity y diffe differen rence cess in crime crime rates rates.. /he /he theor theory y ident identifi ifies es the charac character terist istics ics of communities with high crime rates and draws on social control theory to e!plain why these characteristics contribute to crime. "ocial disorganiGation undermines or hinders <>
informal social controls within the community and neighborhood, thus allowing high rates of crime to occur. /herefore, the absence or breakdown of social control is a key component behind the concept of social disorganiGation. disorganiGation. According to S')$#* *&#rn$n, "%&'r( )andura, <;>>-, juveniles learn to engage in crime in the same way they learn to engage in conforming behaviorB through association with or e!posure to others. ?rimary or intimate groups like the family and peer group have an especially large impact on what we learn. In fact, association with delinuent friends is the best predictor of delinuency other than prior delinuency. #owever, one does not have to be in direct contact with others to learn from themD for e!ample, one may learn to engage in violence from observation of others in the media. /heoretical 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 hisCher environment shows them.
&'5 SIGNI"ICANCE O" T.E ST(D1 /his study would lead to the understanding of both the individual characteristics and the background variables behind the delinuent behavior at present. 'arlier, there was not much impact of media such as television and internet on the young minds. /he massive use of <= mobile phones among youths was also a rarity. )ut with changing times and technologi technological cal advances advances,, children children are more prone to e!posure e!posure to sensitive sensitive materials. materials. 2hanging patterns of familial relationships owing to fast and stressful lifestyle also add to the risk risk of delin delinuen uentt behavi behavior or.. /his /his study study would would help help in gainin gaining g insigh insightt into into the problems faced by the offenders both before and during their stay in the +bservation #ome. /he profile and e!perience of children in conflict with law through the eyes of the children are important information to be obtained through this study. /he study would also help in suggesting the measures for the improvement of the conditions of the inmates at +bservation #ome to ensure safe and healthy environment and proper rehabilitation. rehabilitation.
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&'6 $ESEA$C. MET.ODOLOG MET.ODO LOG1 1 /his /his resear research ch was was conduc conducte ted d using using the K5octr K5octrina inalE lE and ?artly ?artly 'mpiri 'mpirical cal method method of research. 5octrinal legal research, as conceived in the legal research domain, is research KaboutE what the prevailing state of legal doctrine, legal rule, or legal principle is. A legal scho schola larr unde undert rtak akin ing g doct doctri rina nall lega legall rese resear arch ch,, ther theref efor ore, e, take takess one one or more more lega legall propositions, principles, principles, rules or doctrines doctrines as a starting starting point and focus of his study. I locate located d princi principle ples, s, rules rules or doctri doctrines nes in statut statutory ory instru instrumen ment*s t*s-, -, judici judicial al opinio opinions ns thereon, discussions thereof in legal treatises, commentaries, te!tbooks, encyclopedias, legal periodicals, and debates, if any, that took place at the formative stage of such a rule, doctrine or proposition. /hereafter, I KreadE them in a holistic manner and made an Kana Kanaly lysi sisE sE of the the mate materi rial al as well well as of the the rule rules, s, doct doctri rine ness and and form formul ulat ated ed my KconclusionsE. /he 'mpirical methods involve the sample consisting the government observations and uestionnaire interviews interviews with the all inmates constituting the sample as well as officials of the observation home.
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C.A3TE$ 07 LITE$AT($E LITE$AT($E $E%IEW 0'& INT$OD(CTION According to the &I2'F, 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. 4hile the condition stresses on the improvement of these children, still there are issues of severe deprivation. oreover, 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. "ome of these children are from the disadv disadvant antag aged ed popula populatio tions ns who are crimin criminali aliGed Ged for simpl simply y lying lying for surviv survival al.. Freuently, Freuently, the children are held under deplorable and inhumane conditions. ?hysical and psychological abuse is common and the children even suffer trauma resulting from torture and interrogation. #owever, the childrenEs 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. #ence a thorough review of literature is done on relevant studies to find out out the the vari variou ouss issu issues es conc concer erni ning ng the the juve juveni nile le deli delin nue uenc ncy y and and posi positi tive ve yout youth h development. o child is ever born as a criminal. It might be their surroundings, the peer grou group, p, impr improp oper er soci social aliG iGat atio ion, n, and and lack lack of pare parent ntal al care care,, whic which h give give rais raisee to the the
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delinuent behavior among children. /he child development is not only meant by taking care care of the basic biologic biological al needs needs of the children children but also also provid providing ing them them proper proper socialiGation and e!tra development for the child. ?roviding the children with protective cover through strict warning and rigid restrictions are not the solution to prevent the delin delinuen uentt behavi behavior or.. /he /he parent parentss need need to provid providee gentle gentle guidan guidance ce and creat createe close close communication to help the children to come under the protective cover. /he 2onvention on the $ights of the 2hild *2$2- which was conscripted by the & 2ommission on #uma #uman n $igh $ights ts,, aime aimed d at prot protec ecti ting ng and and supp suppor orti ting ng the the well wellb bei eing ng of chil childr dren en.. 2oncerning 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, e!ploitation-, right to development *right to education-, and right to participation. 2$2 has taken into consideration almost all the aspects that could retard growth of a child. /he preamble of this act speaks about, 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. rehabilitation. For the child right to development and right to participate carry the eual importance with other rights. /he childEs right to a life <@ with dignity is considered as an important necessity as the so called biological survival indicators. /he "upreme 2ourtEs decision clarified that the $ight to Life clearly implies $ight to Life with 5ignity and not mere survival.
0'0 "ACTO$S (NDE$L1ING J(%ENILE DELIN8(ENC1 2hildren with strong social bond will commit less crime than those who have weak social bond *#irschi, <;8;-. #irschi, 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 socialiGation. 3aren *<;;-, states that there should be a good relationship between between the mother and the child so that the child
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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 antisocial manner. manner. 3upersmidt and 5odge *1==@- maintain that there are two e!treme hypotheses which specify the differ different ent roles roles of peers peers in develo developin ping g the aggres aggressiv sivee and antiso antisoci cial al behavi behavior or of a delin delinuen uentt child child,, and there there are some some indivi individua duall charac characte teris ristic ticss which which give give rise rise to delinuency among children. #arvey and Fine *1==@- 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. /his occurred because these children needed needed proper proper care care from from their their parent parentss which which was lacki lacking. ng. (igler (igler et al *<;;8B *<;;8B7<= 7<=-observed that children who freuently e!pose to environmental violence e!perience the symptoms of fear, which leads to delinuent behavior behavior in the later stage.
0'2 3E$ 3E$CE3TION CE3TION O" "AI$NESS "AI$NESS 2auff 2auffman man et al *1==>*1==>- e!amin e!amined ed the e!tent e!tent to which which demogr demograph aphic ics, s, psycho psycholog logica ical, l, conte!tual, and legal factors independently predict dispositional outcomes within the two juvenile court jurisdictions. jurisdictions. /he results of this study showed that legal factors have the strongest influence on disposition in both jurisdictions. /he evidence of the popular image of juvenile court as a fle!ible and lenient institution was not much accepted in this study rather the decisions of the court were dependent on the juvenileEs psychological development and mental health.
0'4 3OSITI%E 1O(T. DE%ELO3MENT )arton )arton and )utts )utts *1==:*1==:- have have studie studied d few juvenile juvenile justic justicee progra programme mmess that that have have attempted to implement some aspects of practices that are strengthbased and which also focus on positive youth development. 4illiam 4illiam #. )arton and Jeffrey A. )utts viewed that these practices is possible to implement and such implementation may be associated with staff enthusiasm and perhaps even positive outcomes for youth.
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It is opined /#r"$n *1==- that, there are many theories that have been propounded to e!pl e!plai ain n rega regard rdin ing g the the juve juveni nile le deli delin nue uenc ncy y amon among g chil childr dren en.. /hes /hesee theo theore reti tica call perspectives have e!plained only particular aspects but not all the aspects. #e further e!plains that there are some factors for deviant behavior which includes dysfunctioning of the family family,, substanc substancee abuse, abuse, low selfest selfesteem, eem, peer pressure, pressure, and socioec socioeconomi onomicc factors. "ome background variables * T$+&'r! &" #* , 1=<<- have been studied, such as, family problems, parents who are addicted to alcohol or drugs, etc. through selfreport instruments which e!plains that how an individual e!periences himself or herself, the degree of insight and how they want to disclose themselves to others. +ther factors, such as anger, depression, disruptive behavior and also children, who have lived in foster homes, have been considered important in this study. T#"#r &" #* *1=<<- e!amined that the individualEs perception of fair treatment by the
justice system which has an effect on their attitudinal, emotional, and behavioral outcom outcomes. es. any any other other measu measures res are taken taken in this this study study such such as demogr demograph aphic icss and background variables, depressive symptoms, anger, selfesteem, selfesteem, attitude towards staff and inmates, institutional offending, and institutional substance abuse. B""! &" #* *1==- emphasiGed the role of communities which helps in the positive
development of children which is known as 2ommunity 0o 0outh 5evelopment *205-. /he search institute has considered some factors through which a positive youth development in a juvenile can be achieved i.e. through individual and conte!tual 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 $ichard and Lerner and his colleagues, emphasiGes on the interactions between individuals such as family, school, and community. P&$!&r *1==<- studied that the parental discipline style which is considered as a key
variable that helps in e!amining the contribution of family and personality factors to 17
delinuency. delinuency. "elfesteem is considered as an important contributor to the development of delin delinuen uency cy.. A compar comparati ative ve study study was was conduc conducted ted betwe between en some some countr countries ies which which measured the levels of selfesteem. 3aplan *<;>, <;>>, <;>:, and <;:=- 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. "ome environmental factors have been identified which leads to delinuency among youths. W&#"%&rrn #n+ L$n+ *<;;>- observed that the reasons for delinuency 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. C'3#n'r #n+ P%$**$! *1==1- observed that fathers play a critical role in the rearing of
boys at a tender age and having a stepfather also increases the delinuency among the children rather than having a stepmother. stepmother.
0'5 CONCL(SION7 It can be seen that both individual variables and environmental conditions are considered considered to be important by the previous studies in being responsible for delinuent behavior. It is also important that individualEs perception of fair treatment by the justice system has an effe effect ct on thei theirr atti attitu tudi dina nal, l, emot emotio iona nal, l, and and beha behavi vior oral al outc outcom omes es.. ?osi ?ositi tive ve yout youth h development in a juvenile can be achieved i.e. through individual and conte!tual factors that help the youth to avoid the harmful behavior and keep them engaged in some activities that promotes to positive development within them. /herefore, the present study aims to e!amine all the three dimensions, background variables, perception of fair treatment and positive youth development as related to juvenile delinuency. delinuency.
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C.A3TE$ 27 CONCE3T O" J(%ENILE S1ESTEM 2'& INT$OD(CTION uch 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. /he 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 wellbeing and rehabilitation. +n completion of their sentence they are flushed out, illeuipped to handle life outside of the institution. /his treatment meted out to juvenile juve nile offenders is most deplorable, especially when juvenile legislation recogniGes that juveniles in conflict with law also reuire care and protection. It should be borne in mind that the Juvenile Justice *+are * +are and !rote)tion of 2hildren- Act 1===, as did the Juvenile Justice Act <;:8 and the 2hildren 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 1=== legislation suggests, it is both the categories of children that reuire care and protection.
A separate adjudicating and treatment mechanism has been established for persons below <: years of age who have committed committed an offence. /hey are not to be treated in the same manner as are treated adult offenders. /he 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.
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/...from their in)eption* "outh justi)e s"stems have pro)eeded from the assumption that )hildren and "oung people* b" dint of their relative immaturit"* are are less able to )ontrol their impulses* less able to understand the seriousness of their offen)es and less able to foresee the )onse0uen)es of their a)tions. 1in$ed to this is the belief that the )ulpabilit" of man" "oung offenders ma" be further mitigated b" the povert"* )ruelt" or negle)t the" have suffered234
2'0 .ISTO$1 O" J(%ENILE LEGISLATION From the early 1=th 1= th century, the different Indian "tates had enac ted their own 2hildren Acts. /he adras 2hildren Act <;1= was the first 2hildren Act to be enacted, closely followed by )engal and )ombay in <;11 and <;1@, respectively. /hough the )ombay 2hildren Act was enacted @ years after the adras 2hildren Act, it was the first 2hildren Act to become functional. In February <;1@, a voluntary stateaided agency, viG., the 2hildrenEs Aid "ociety, was formed to implement the provisions of the )ombay 2hildren Act within the municipal corporation limits of )ombay. 2A" established institutions for the care and protection of children, and even today manages these institutions.
/he "tateE "tateEss 2hildr 2hildren en Acts Acts brough broughtt within within itsambi itsambitt two catego categorie riess of childr children, en, viG., viG., *i-youthful offenders, and *ii- destitute andneglected children. )oth these categories ofchildren were to be handled by the Juvenile2ourts. 5uring this period throughout theworld, children were dealt with under thewelfarism mode. /he wellbeing of thechild was at center stage for both thesecategories of children and adjudication ofguilt was not stressed, hence ?robation+fficers played an important role and legalrepresentation was unheard of.
/he /he 6ove 6overn rnm ment ent of Indi ndia pass passed ed the 2hil 2hildr dren enAc Actt <;8= <;8= to pro provi vide de for the care care,, protection,maintenance, welfare, training, educationand rehabilitation of neglected or delinuent
<5outh justi)e in ngland and &ales* John ?itts, contained in 6he 7e8 !oliti)s of +rime and !unishment* edited by $oger atthews N Jock 0oung, 4illan ?ublishing, pg.><.
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children and for the trial of delinuent children in the &nion /erritories. &nder this Act, a child is a boy below <8 years of age and a girl, below <: years of age.1
/he 2hild 2hild 4elfare elfare )oard handled handled neglected neglected children, children, and the 2hildrenEs 2hildrenEs 2ourt, delinuent delinuent children. /his statute was a precursor to the JJA <;:8. "tate governments had not only enacted their separate legislations for children, the provisions contained in each "tateEs 2hildren Act were also varied. 'ven the definition of the term child differed from "tate to "tate. /his prompted the "upreme 2ourt in <;:87 to observe, @. 98e 8ould suggest that instead of ea)h State having its o8n +hildrens A)t different in pro)edure and )ontent from the +hildren;s A)t in other States* it 8ould be desirable if the +entral #overnment initiates !arliamentar" 1egislation on the subje)t* so that there is )omplete uniformit" in regard to the various provisions relating to )hildren in the entire territor" of the )ountr". 6he +hildrens A)t 8hi)h ma" be ena)ted b" !arliament should )ontain not onl" provisions for investigation and trial of offen)es against aga inst )hildren belo8 the age of 4< "ears but should also )ontain mandator" provisions provisions for ensuring so)ial* e)onomi) and ps")hologi)al rehabilitation rehabilitation of the )hildren 8ho are either a))used of offen)es o ffen)es or are abandoned or destitute or lost. Moreover* it is not enough merel" to have legislation on the subje)t* but it is e0uall"* if not more* important to ensure that su)h legislation is implemented in all earnestness and mere lip s"mpath" is not paid to su)h legislation and justifi)ation for non,implementation is not pleaded on ground of la)$ of finan)es on the part of the State. 6he greatest re)ompense 8hi)h the State )an get for e=penditure on )hildren is the building up of po8erful human resour)es read" to ta$e its pla)e in the for8ard mar)h mar)h of the nation.3
/he 6eneral Assembly on 1;th ovember <;: adopted the &nited ations "tandard inimum $ules for the Administration of Juvenile Justice @, and for the first time the word juvenile was used in international law, and the term juvenile justice was coined. /his change in terminology was then reflected in domestic law with the passing of the JJA <;:8. .". "abnis has given the 1"ection 1*e- of the 2hildren Act <;8=.
7SheelaBarse vs. nion of -ndia: *<;:8-ndia: *<;:8- 7 "22 871D *<;:8- "22 *2ri- 71D <;:8 2riLJ <>78 *"2-.
@ Also known as the )eijing $ules.
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reasons for the change of terminology on the international platform as being twofoldB *<- 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 *1- at the same time to caution against pure welfarism that denies a child due process and the basic legal safeguards.
/he concentration was to be divided between the wellbeing of the child and justice. Justice not only to the child, but also to those aggrieved by his deed. /his was necessitated by the growing cynicism towards welfarism amongst politicians and the public, as well as civil libertarians. /he former was of the opinion that children beyond a particular age should be made responsible for their actionsD if they can act as adults do, why should they not be treated as adults. 4hereas 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 2onstitutional and procedural precautions guaranteed to adults, especially as juveniles too are deprived of their personal pe rsonal liberty. ations introduced separate legislations for juvenile offenders and children reuiring care and protection. 4ith 4ith the enactment of JJA <;:8, though there continued to be a single law, two distinct distinct machineries machineries were setup to deal with neglected neglected juveniles and delinuent delinuent juveniles. juveniles. ?ending their inuiries before their respective competent authorities, both these categories of children were kept in the +bservation #ome. JJA 1=== 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 inuiries. /his segregation aims to curtail the corruption of the innocent child from the influence of the criminal juvenile. /he vulnerable misguided child is now perceived as a conniving violent juvenile from whom society, including other children, reuires protection. /his 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. /he 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.
'uvenile 'usti)e 'usti)e and 'uvenile +orre)ti +orre)tion: on: !ride and !ruden)e* !ruden)e* .". "abnis, "omaiya ?ublications ?vt Ltd. *)ombay N ew 5elhi<;;8-. ?g7<.
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Juvenile legislation in India has attempted to balance welfarism and justice with the conceptualiGation of a welfare court that provides a child his 2onstitutional and procedural safeguards safeguards at the inuiry stage, and thereafter thereafter,, decides his treatment treatment mode keeping keeping in mind the childEs interest and his comprehensive rehabilitation. /hat a person below <: years of age who has committed an offence also reuires protection continues to be reflected in our law, and it is wished that it will always continue to do so. /he same law, JJA 1=== still governs both juveniles in conflict with law and children in need of care and protection. +ur Juvenile Justice )oards have thankfully not yet been transformed into lesser criminal courts for youthful offenders, and have persisted with a sociolegal approach, giving the social aspect of juvenile delinuency the importance it deserves. /he &nited ations 2onvention on the $ights of the 2hild, while assuring a child certain guarantees,8 also obligates that the best interest of the child shall be a primary consideration> in all actions concerning children. /he odel $ules too have regarded the ?rinci ?rinciple ple of )est )est Interes Interestt as being being fundam fundament ental al for the applic applicati ation, on, interp interpret retati ation on and implementation of JJA 1===, and is to be of primary consideration while administrating juvenile justice.
2'2 W.O IS A J(%ENILE A juvenile or child means a person who has not completed eighteenth year of age. A boy or girl under <: years of age is a juvenile or child under section 1*k- of JJA 1===. /he age of juvenility of a boy child under un der JJA <;:8 was below <8 years ye ars and that of a girl child was below <: years of age.: /hose working in the field of children had campaigned to increase the age of boy juveniles to bring it on par with girl juveniles. /he age of a boy juvenile has been increased to <: years by b y JJA 1=== mainly to bring juvenile legislation into con formity with the 2$2 which the 6overnment of India had ratified on < |
>Article 7.< of 2$2.
:"ection 1*h- of JJA <;:8.
; $atification is the act by which a country shows its willingness to be bound by an international instrument.
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$easons of JJA 1=== has indicated this nonconformity as being a ground for amending JJA <;:8B
1. In this conte!t, the following further proposals have been made ... *iii- /o /o bring the juvenile law in conformity with the &nited ations 2onvention on the $ights of the 2hildD *iv-/o prescribe a uniform age of eighteen years for both boys and girlsD ... Article Article < of 2$2 states that, />or the purposes of the present +onvention* a )hild means ever" human being belo8 the age of 4? "ears unless* under the la8 appli)able to the )hild* majorit" is attained earlier.3 "o earlier.3 "o currently both boys and girls below <: years of age enjoy the protection of juvenile legislation. 4hatever be the reason for increasing the age of the boy juvenile, it was vital to do so and is welcomed.
"ection 1*l- of JJA 1=== has defined /juvenile in )onfli)t 8ith la83 as a juvenile 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. /his amended definition<= has put to rest the debate as to the relevant date at which juvenility is to be determined. /he courts, including the "upreme 2ourt, had continuously held that the date of offence was the relevant date. In 1===, the "upreme 2ourt, in Arnit in Arnit Das vs. State of Bihar ,<< 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, viG., the JJ). Arnit JJ). Arnit DasE DasE case raised the uestion about /referen)e to 8hi)h date the age of the petitioner is re0uired to be determined for finding out 8hether 8hether he is a juvenile juvenile or not3. /he not3. /he twoJudge )ench of the "upreme 2ourt held that /So far as the the pres presen entt )onte )onte=t =t is )on)e )on)ern rned ed 8e are are )lear )lear in our our mind mind that that the the )ru) )ru)ia iall date date for for determining the 0uestion 8hether a person is a juvenile is the date 8hen he is brought before the )ompetent authorit".3 /his authorit".3 /his judgment as deserved was widely critiued. It was criticiGed as it <=)rought into effect from 11:1==8 b y the Juvenile Justice *2are and ?rotection of 2hildren- Amendment Amendment Act 1==8 *77 of 1==8-.
<< Arnit Das vs. vs. State of Bihar: Bihar: *1===- "22 @::D 1=== "22 *2ri- ;81D AI$ AI$ 1=== "2 118@D 1=== 2riLJ 1;>< *"2-.
7=
diverted diverted from a wellsett wellsettled led principle of law thereby depriving young persons of the beneficial provisions of juvenile legislation. any felt that the th e judgment had failed to interpret the law in its correct spirit. oreover, it did not consider a<;:1 threeJudge )ench decision of the "upreme 2ourt: that had unambiguously held that the relevant date was the date of offence. In mesh +handras case the "upreme 2ourt had heldB<1
/As regards the general appli)abilit" of the A)t* 8e are )learl" of the vie8 that the relevant date for the appli)abilit" of the A)t is the date on 8hi)h the offen)e ta$es pla)e. +hildren A)t 8as ena)ted to prote)t "oung )hildren from the )onse0uen)es of their )riminal a)ts on the footing that their mind at that age )ould not be said to be mature for imputing mensrea as in the )ase of an adult. 6his being the intendment of the A)t* a )lear finding has to be re)orded that the relevant relevant date for appli)abilit appli)abilit"" of the A)t is the date on 8hi)h the offen)e ta$es pla)e9 &e are )learl" of the vie8 that the relevant date for appli)abilit" of the A)t so far as age of the a))used* 8ho )laims to be a )hild* is )on)erned* is the date of the o))urren)e and not the date of the trial.3
Lawyers Lawyers and academ academici icians ans decried decried the noncons nonconside iderat ration ion of mesh mesh +handr +handra ass threeJudge )ench judgment whilst deciding ArnitDas deciding ArnitDas case. case.<7 A review petition was filed and referred to a larger )ench to resolve the conflict between the two opinions.<@ )ut the "upreme 2ourt demurred from resolving the issue then, because on facts Arnit facts Arnit Das was not ajuvenile on the date of offence, and the court was not inclined to answer academic uestions only.
<imately <imately a fiveJudge fiveJudge )ench settled this issue in !ratap Singh vs. State of 'har$hand %Ors.4@reverting back to the seasoned findings thathad been incorrectly overturned in Arnit in Arnit Das <1mesh <1mesh +handra vs. State of Rajasthan B *<;:1- 1 "22 1=1D <;:1 "22 *2ri- 7;8D AI$ <;:1 "2 <=>D <;:1 2riLJ ;;@ *"2-.
<7$elevant date for applying the Juvenile Justice Act, 5r. 9ed3umari, *1===- 8 "22 *Jour- ;.
<@Arnit 5as vs. "tate of )ihar B *1==<- > "22 8>D 1==< "22 *2ri- <7;7D AI$ 1==< "2 7>.
< *1==- 7 "22 @1D AI$ 1== "2 1>7
7<
judgment. /he Ape! 2ourt in !ratap in !ratap Singhs Singhscase was faced with a uery as to 4hether 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 C competent authority. authority. All five Judges un animously opined, /he 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. /he decision in mesh +handras case was held to be correct law, and it was established that the decision rendered by atwoJudge )ench of this 2ourt in Arnit in Arnit Das cannot be said to have laid down a good law.
In the Arnit the Arnit Das judgment of 1===, the "upreme 2ourt had observed that the legislature had been vague whilst defining the term delinuent juvenile in the <;:8 ActB
11. All 11. All this e=er)ise 8ould 8ou ld have been avoided if onl" the legislature 8ould have ta$en )are not to leave an ambiguit" in the definition of juvenile and 8ould have )learl" spe)ified the point of time b" referen)e to 8hi)h the age 8as to be determined to find a person to be a juvenile.3
Fort Fortun unate ately ly the the legis legisla latu ture re heede heeded d this this comme comment nt of the the Ape! pe! 2ourt 2ourt,, and and to remo remove ve any misunderstanding, the definition of juvenile in conflict with law was amended in 1==8. At this stage it is essential to e!amine the evolution of the term de linuent juvenile or juvenile in conflict with law under juvenile legislation in relation to the point in time at which juvenility isto be determined. /he <;:8 Act defines delinuent juvenile as a juvenile who has been found to have committed an offence.<8
It was this this defini definitio tion n that in ArnitDas )ase was found to be ambiguous. In order to remove the uncertainty, the 1=== Act redefined juvenile in conflict with law <> to mean a juvenile who is alleged to have committed an offence. /his 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 <8"ection 1*e- of JJA <;:8.
<> In the 1=== Act, the term juvenile in conflict with law replaced the term delinuent juvenile.
71
committed. After !ratap After !ratap Singhs)ase Singhs)ase,, the legislature through the 1==8 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 commis commissio sion n of such such offence offence..<: In case case of continu continuous ous offenc offence, e, i.e., i.e., an offenc offencee 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 <: years, he is still to be dealt with under juvenile legislation irrespective of when the FI$ is registered. registered.
2'4 Inte,national
Scena,io
/he "econd & 2ongress on ?revention of 2rime and /reatment of +ffenders in <;8= stated that juvenile delinuency should be understood as the commission of an act, which when committed co mmitted by an adult above a prescribed age would constitute an offence in law. /he "i!th &nited ations 2ongress on the ?revention of 2rime and /reatment of +ffenders held in 9eneGuela in <;:= discussed further and in detail the problem of juvenile delinuency. /hey decided that there should be the "tandard inimum $ules forthe Administration of Juvenile Justice. 'very child has its human rights and they should not be denied to it by anybody. #ence, they said that there should should be laws to protect theright of the children. children. 2onseuent 2onseuent to it, it was accepted accepted that special special attention should be given to the steps initiated to prevent delinuency among children and also to homeless and street children in the urban setting. /he need for giving special attention to youth criminality was also given due importance and emphasis. /he nature of youth criminality in semiurban and rural areas was considered. Further, the following areas were discussed at the meeting at )eijing *ay <@ to <:, <;:- which e!amined the "tandard inimum $ules for the Administration of Juvenile Justice.
A KchildE is defined in the & 2onvention on the $ights of the 2hild *2$2- > as a person under the age of <:. /his /his includ includes es infancy infancy,, early early childh childhood ood,, middle middle childh childhood ood and adolesc adolescent ents. s.
/he & 2onvention on $ights of the 2hild,: <;:; draws attention to four sets of civil, political, social, economic and cultural rights of every c hild. /hese areB
<:"ection 1*l- of JJA 1===.
77
<. R$,%" "' !r$#* B /his includes the right to life, the highest attainable standard of health, nutrition, and adeuate standards of living. It also includes the right to a name and a nationality. R$,%" "' r'"&)" r'"&)"$'n $'nB /his 1. R$,%" /his includ includes es freedo freedom m from from all forms forms of e!ploi e!ploitat tation ion,, abuse, abuse, inhuman inhuman or degrading treatment, treatment, and neglect including including the right to special special protection protection in situations of emergency and armed conflicts. 7. R$,%" "' +&&*'3&n" B /his includes the right to education, support for early childhood development and care, social security, and the right to leisure, recreation and cultural activities. @. R$,%" "' #r"$)$#"$'n B /his includes respect for the views of the child, freedom of e!pression, access to appropriate information, and freedom of thought, conscience and religion. /he 2onvention provides the legal basis for initiating action to ensure the rights of children in soci ociety ety.$elevan vant
articles
from
the
&
2onven vention
on
the
$ight ghts
of
the
2hild
Ar"$)*& 4
"tates ?arties undertake to protect the child from all forms of se!ual e!ploitation and se!ual abuse. For these purposes "tates ?arties shall in particular take all appropriate national, bilateral and multilateral measures to preventB a. /he inducement inducement or coercion coercion of a child to engage engage in any unlawfu unlawfull se!ual se!ual activity activityDD b. /he e!ploitative use of children in prostitution or other unlawful se!ual practicesD c. /he e!ploitat e!ploitative ive use of children children in pornogr pornographic aphic perfor performances mances and material materials. s. Ar"$)*& 5
"tates ?arties 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.
Ar"$)*& 6
"tates ?arties shall protect the child against all other forms of e!ploitation prejudicial to any aspects of the childEs 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 h uman infant any protection at all. /he need to survival and protection continues 7@
till the child attains maturity and adulthood. /he child being the nursery of all civiliGation and all human potential has to be provided with various institutional and noninstitutional system of development which consists of programs pertaining to education, life skills, nutrition, health, and shelter and most important, the right to childhood.
2'5 3,ovision ,elate+ to Chil+,en in 9Constitution o In+ia: •
Ar"$)*& 14: /he "tate shall not deny to any person euality before the law or theprotection
•
of the laws within the territory of India. Ar"$)*& 15 a. /he "tate "tate shall not not discrimi discriminate nate against against any citiGe citiGen n on grounds grounds only of religion, religion, race, race, caste, se!, place of birth or any of them. b. o citiGen shall, on grounds only of religion, race, caste, se!, place of birth or any of them, be subject to any disability, liability, liability, restriction or condition with regard to access to shops, public restaurants, hotels and places of public entertainmentD
or the use of wells, wells, tanks, tanks, bathin bathing g ghats, ghats, roads and places places of public public resort resort maintained wholly or partly out of "tate funds or dedicated to the use of the
general public. othing in this article shall prevent the "tate from making any special
provision forwomen and children. c. othing othing in this article article or in in clause *1*1- of article article 1;shall 1;shall prevent prevent the "tate "tate from making making any spec specia iall prov provis isio ion n for for the the advan advancem cemen entt of any soci social ally ly and and educa educati tiona onall lly y backward classes of citiGens or for the "cheduled 2astes and the "cheduled /ribes. *- othing in this article or in subclause *g- of clause *<- of article <; shall prevent the "tate from making any special provision, by law, for the advancement of any socially and educationally backward classes of citiGens or for the "cheduled 2astes or the "cheduled /ribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the "tate, other than the minority educational institutions referred to in clause *<- of article 7=.
7
•
Ar"$)*& 21A . /he "tate shall provide free and compulsory education to all children of the
•
age of si! to fourteen years in such manner as the "tate may, by law, determine. Article 1@. o child below the age of fourteen years shall be employed to work in any
•
factory or mine or engaged in any other haGardous employment. Ar"$)*& 9. /he "tate shall, in particular, direct its policy towards securing a. that that the citiGen citiGens, s, men and women women eually eually,, have have the right right to an adeuate adeuate means means of livelihoodD b. that the ownership and control of the material resources of the community are so distributed as best to subserve the common goodD c. that that the the oper operat atio ion n of the econo economi micc syst system em does not resu result lt in the the conc concent entra rati tion on of wealthand means of production to the common detrimentD d. that there is eual eual pay for eual eual work work for for both both men and and womenD womenD e. that that the health health and streng strength th of work worker ers, s, men and women, women, and the the tende tenderr age age of childrenare not abused and that citiGens are not forced by economic necessity to enter avocationunsuited to their age or strength. f. that childr children en are given given opportuni opportunities ties and and faciliti facilities es to develop develop in in a healthy healthy manner manner and in conditions of freedom and dignity and that childhood and youth are protected
•
against e!ploitation and against moral and material aband onment. Ar"$)*& 45. /he "tate shall endeavour to provide, within a period of ten years from the commencement of this 2onstitution, for free and compulsory education for all children until they complete the age of fourteen years.
ARTICLE 47 . It states it is the duty of the state to raise level of nutrition and standard of
living. /he parliament has enacted the :8th constitutional amendment in 1==1 and made right to education a fundamental right.
2'6 $ET$OS3ECTI%E LEGISLATION /here was also confusion confusion as to whether the provisions provisions of the 1=== Act would would apply to a person who had committed an offence prior to
78
came into force, and his case was pending. )y this reasoning a person under <: years of age on the date of offence would not enjoy the protection guaranteed to a juvenile if he had crossed the age of <: years on A allows a person to raise a plea of juvenility even after final disposal of the case, and obligates the court to conduct an inuiry to ascertain such personEs age as on the date of offence and if found to be a juvenile on that date, to transfer the case to the JJ) for appropriate orders. "ection 8@ of JJA 1=== e!tends the ambit of the Act to those persons undergoing a sentence of imprisonment at the commencement of the Act and who were below <: years of age on the date of offence. It is imperative for "tate governments to e!peditiously establish a mechanism to identify persons who were below <: years of age on the date of offence and have been convicted as adults and are undergoing un dergoing their respective sentences in different jails.
<;'!planation to section 1= of JJA 1===.
1= )lackEs Law 5ictionary, 4est ?ublishing 2o., 8th 'dition, ?g <7<>.
7>
?rompt 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 "ection 64 which provides for their treatment in accordance with juvenile legislation. 2riminal courts could have sentenced such persons with life imprisonment or death, and they could be on the death row awaiting e!ecution.
2'; O%E$$IDING E""ECT O" J(%ENILE LEGISLATION /he procedure prescribed under JJA 1=== 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.1< Juvenile legislation lays down a distinct custodial, adjudicatory and sentencing mechanism. /he severity of the offence is of no conseuence, nor that is the offence covered under a special law11 or local law. law.17 /he "upreme 2ourt and different #igh 2ourts have held that juvenile legislation shall reign supreme in juvenile cases no matter the nature of offence committed.1@ /o avoid any doubts in this respect, JJA 1=== uneuivocally statesB
"ection <*@-B 7ot8ithstanding <*@-B 7ot8ithstanding an" thing )ontained )o ntained in an" other la8 for the time being in for)e the provisions of this A)t shall appl" to all )ases involving detention* prose)ution *penalt" or senten)e of imprisonment of juveniles in )onfli)t 8ith la8 under su)h other la8.3 la8.3 1<$elevant date for applying the Juvenile Justice Act, 5r. 9ed3umari, *1===- 8 "22 *Jour- ;.
11 "pecial law is a statute relating to a particular subject, and creates offences that are not covered under I?2. For e!ample, the Immoral /raffic *?revention- Act <;8, the arcotic 5rugs N ?sychotropic "ubstances Act <;:, the Arms Act <;;.
17 Local law is a statute that is applicable within a specific region. For e!ample, the )ombay ?olice Act <;<, the aharashtra 2ontrol of +rganised 2rime Act <;;;.
1@ $aj "ingh vs. "tate of #aryanaB *1===- 8 ""2 >;D 1=== "22 *2ri- <1>=.
7:
#ence, whatever crime the juvenile is allegedto have committed, on ascertaining that he isa juvenile his case should be brought beforeJJ) and his custody be with the +bservation#ome. /hereafter the course taken should bethat as setout under juvenile legislation.
C.A3TE$ 4 7AGE DETE$MINA DETE$MINATION TION 4'& AGE O" C$IMNAL $ES3ONSI#ILIT1 /he domestic laws of all countries have laid down a minimum age below which a person is e!empt from prosecution and punishment. /he rationale for such e!emption is the absence of mensrea, i.e., not to criminaliGe the acts of those who at the time of commission of the crime did not know the right from the wrong. ?ersons below that age do not realiGe nor intend the conseuences of their acts. Article @=*7- *a- of 2$2 reuires "tate ?arties to promote the the establishment of a minimum age belo8 8hi)h )hildren shall be presumed not to have the )apa)it" to infringe the penal la83. /he age of criminal responsibility in India is fi!ed at > years by I?2. "ection 82 I?2B /7othing is an offen)e 8hi)h is done b" a )hild under seven "ears of age.3 #ence, age.3 #ence, under Indian law a child below > years of age cannot be prosecuted and will not enter the juvenile 7;
justice system as a juvenile in conflict with law. If such child falls within the definition of child in need of care and protection,1 he could be produced before the 2hild 4elfare 2ommittee for his care, protection and rehabilitation. ost 'uropean countries have fi!ed the age of criminal responsibility between <7 to < yearsD France, ?oland, 6ermany, Italy and Finland have fi!ed it at <7, <7, <@, <@, and < years, respectively. "even years is a very low age of criminal responsibility, and reuires to be raised. /he law has recogniGed that a person between the age of > and <: years is less culpable than an adult, and has setout different levels of criminal responsibility depending upon the childEs maturity and age. S&)"$'n 8 IPC:
/7othing is an offen)e 8hi)h is done b" a )hild above seven "ears of age and under t8elve* 8ho has not attained suffi)ient maturit" of understanding to judge of the nature and )onse0uen)es of his )ondu)t on that o))asion.3 /he accused child to avail of this defence will have to prove that he is below <1 years of age and that he has not attained adeuate maturity of understanding therefore he did not know that what he was doing was wrong.
&nder the Indian law children between > to <1 years of age having sufficient maturity and between <1 to <: 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. "uch "uc h children will be dealt d ealt with under juvenile legislation, and the focus will be on reforming and rehabilitating them.
4'0 DETE$MINATION O" AGE 5espite e!isting juvenile legislation, persons below the age of <: 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. /he agistrates and Judges thereafter continue to so treat the juvenile to his detriment. 5ue to this apathy, children are incarcerated in prisons and sentenced to life imprisonment in absolute violation of the law. 1"ection 1*d- of JJA 1===.
@=
/he police are known to deliberately portray a juvenile as an adult in order to retain his custody. +nce shown to be a juvenile, the accusedEs custody is shifted to the +bservation #ome and his control to the JJ). oreover, the police are inconven ienced by repeated visits to the JJ) which is a change to their regular routine. #ence, it is preferred to add a few years to the age of the accused. agistrate agistratess and Judges are too busy to notice that the person produced before them is a juvenile. /he accused juvenile due to monetary constraints has no legal representation till the trial stage when a legalaid lawyer is appointed, and he himself is personally unaware of juvenile legislation to be able to raise the plea of juvenility. /he lawyer too often does not suitably advise his client. "o many years pass as the juvenile languishes as an under trial in jail in the company of hardened criminals before his section 7<7 2r?2 statement is recorded. /his 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 reach ed and the accused could have crossed the age of juvenility. /he agistrate or Judge fail to discern that the young accused was below <: years of age on the date of offence, and go on to sentence him as an adult. /he "upreme 2ourt has in Raisul in Raisulsscase18relied upon the age given by the accused in his section 7<7 2r?2 statement in preference to the estimation of the "essions 2ourt and the #igh 2ourt. /here have been cases where the criminal justice system has not recogniGed an accused to be a juvenile, and the claim of juvenility is raised for the first time before the "upreme 2ourt. /his practice resulted in the Ape! 2ourt in <;:@ 1> instructing agistrates to conduct an inuiry about age when it appeared that the accused was under 1
18 Raisul vs. State of .!. .!.: *<;>8- @ "22 7=8 "22 *2ri- 8<7D AI$ <;>> "2 <:11D <;>> 2riLJ < *"2-.
1>#opinath#hosh 1>#opinath#hosh vs. State of &est Bengal: <;:@ Bengal: <;:@ "upp "22 11:D <;:@ "22 *2ri- @>:D AI$ <;:@ "2 17>D <;:@ 2riLJ <8: *"2-.
1:A.3. 6upteN ".5. 5ighe, #ind Law #ouse, 1==<, Fifth edition, 2hapter 9I, pg.<@;.
@<
/All +ourts should* 8henever a "outhfuloffender or a part" is produ)ed before them *ta$e steps to as)ertain his age. -f the age given b" the !oli)e does not appear to be )orre)t from the appearan)e of the offender or part"* and if the !oli)e )annot produ)e satisfa)tor" eviden)e regarding the age* the +ourt should )onsider the desirabilit" of sending the offender or part" to the Medi)al Offi)er for the verifi)ation of his age before pro)eeding 8ith the )ase.... At the time of the the e=am e=amin inat atio ion n of the the a))us a))used ed** the the Sessi Sessions ons 'udg 'udgee or Magi Magist stra rate te shou should ld ther theree fore fore *spe)ifi)all" as$s su)h a))used person his or her age for the purpose of re)ording re)ording it. -f the Sessions 'udge or Magistrate suspe)ts that the age stated b" the a))used* having regard to his or her general appearan)e or some other reason* has not been )orre)tl" stated *then the Sessions 'udge or Magistrate should ma$e a note n ote of his estimate. 6he +ourt +ou rt ma" also* 8hen it so deems fit or proper* proper* order a medi)al e=amination of the a))used for the purpose of as)ertaining his )orre)t age. -f an" do)umentar" eviden)e on the point of age is readil" available* the prose)ution ma" be as$ed to produ)e it.3
/he 2riminal 2riminal anual in 2hapter 9III 9III *pg.<;:-which *pg.<;:-which deals with +hild and 5oung Offenders obligates the agistrate to ascertain the age of an accused produced before him. /he police are reuired to state the age of the accused and to produce evidence in support of the same. /6he best eviden)e of age is the entr" in the Births and Death Register. Register. &here this this is not available* the a))used person should be got medi)all" e=amined and a medi)al )ertifi)ate obtained in regards to his age. A definite finding 8ith regard to his age should be re)orded in ever" )ase.3 If )ase.3 If the accused is found to be a juvenile, he is to be produced before the JJ) along with his case papers. In BholaBhagat In BholaBhagatsscase,1; the "upreme 2ourt instructs courts before whom a plea of juvenility is raised to hold an inuiry 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. /he best proof of age is the )irth 2ertificate, but the rate of registration of births in India is very low. /he registration of births at the national level in <;; was H.7= /his rate of registration of birth fluctuates from one "tate to anotherD in /amil /amil adu it was ;=.7H whereas in $ajasthan it 1; BholaBhagat vs. vs. State of Bihar: Bihar: *<;;> *<;;>- : "22 >1=D AI$ <;;: "2 178.
7=$eport of the 4orking 6roup on $egistration of )irths, 5eaths and arriages constituted by the ational 2ommission on ?opulation.
@1
was 17.>H. /he ne!t best proof of age is the "chool Leaving 2ertificate. ore persons will possess a"chool a"choo l Leaving 2ertificate than a )irth 2ertificate as school enrolment rates are high. /he gross enrolment ratio in primary education for the year 1==1 O 1==7 for boys is <==H and for girls ;7H. ;7H.7< 'ven 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 the"chool Leaving 2ertificate.)irth 2ertificate and "chool Leaving2ertificate is the only documentary evidencethat is considered for the purpose ofdetermining age. Age mentioned in $ation2ards, Family 2ards, Identity 2ards issued bythe 'lection 2ommission of India, etc., is notproof of age, and should not be treated assuch by the courts. A )irth 2ertificate or"chool Leaving 2ertificate produced by theaccused to denote his age may be gottenverified in the event of the court doubting itsveracity. itsveracity. 9er 9erification ification is generally done bypoliceEs scrutiny of the original registersfrom which the e!tracts have been issued, orby the court e!amining a representative ofthe authority that has issued the document orthe childEs parentsCrelatives. 'ven otherwise,the recording of parentEsC relativeEs 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. /he juvenile is sent to a public or police hospital for medical e!amination to determine his age. /6he prin)iple means* 8hi)h enable one to form a fairl" a))urate opinion about the age of an individual* espe)iall" in earl" "ears* are teeth* height and 8eight* ossifi)ation of bones and minor signs.3E +ssification test is performed by radiological e!amination of several main joints, and the opinion of age is based on the e!tent of fusion of the bones. /he age as ascertained by medical e!amination 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 1 years on either side. 77 /he foundation of the Indian criminal justice system is that any doubt or ambiguity should support 7< ?ress ote dated <7th February 1==8 issued by the inistry of "tatistics N?rogramme Implementation, Implementation, 6overnment of India.
71 Modis Modis Medi)al Medi)al 'urispruden)e 'urispruden)e % 6o=i)olo 6o=i)olog"* g"* )utterworths )utterworths India, ew 5elhi *11nd 'dition-, pg.@;.
77 'a"a Mala vs. (ome (ome Se)retar"* Se)retar"* #ovt. of '%K: '%K: *<;:1 *<;:1- 1 "22 7:D <;:1 "22 *2ri- =1D AI$ <;:1 "2 <1;>D <;:1 2riLJ <>>>*"2-.
@7
the accused. #ence in borderline cases the accused is to be treated as a juvenile. oreover, the "upreme 2ourt has held that the approach of the courts should not be hypertechnical whilst determining juvenility.7@ In case of conflict between documentary evidence and the medical e!amination report, the age shown in an authentic document will be treated as the correct age of the accused.7
A /do)tor is not al8a"s truthful3, truthful3 , a professional witness is prone to side with the party who who seeks seeks his his serv servic icee was was the the obse observ rvat atio ion n of the the #igh #igh 2our 2ourtt in a case case wher wheree medi medical cal e!amination to determine age was sought by a private party.78 ore circumspection is reuired when it is the police that escort a juvenile in conflict with law to a medical officer. officer. In the event of a medical e!amination report indicating a person apparently a juvenile to be over <: years of age, an application should be made before the court for conducting through another hospital a second medical e!amination, and in case of conflicting results, the doctors testimony should be recorded by the court to make certain which of the two medical e!amination report depict a correct estimate of the accusedEs age. /he )ombay #igh 2ourt in its judgment dated <:th February 1==> passed in 2riminal 4rit ?etition o.<8;@ of 1==7 * !RRA7A !RRA7A vs. State of Maharashtra %Ors.-, %Ors.-, whilst dealing with the issue of commercial se!ual e!ploitation of woman and childr children en has instru instructe cted d agist agistrat rates es and "essio "essions ns Judges Judges /to order order a se)ond se)ond medi)al medi)al e=amination e=amination to as)ertain the age of the vi)tim vi)tim to be )ondu)ted b" a medi)al offi)er atta)hed atta)hed to another publi) hospital* in )ase the result of the first medi)al e=amination are under doubt.3
&nder JJA 1===, the JJ) is to conduct an inuiry to determine age when a person is brought before it, but such inuiry need be conducted only in cases where the person is not apparently a juvenile.
@;. ?resumption and determination of age. 7@ Rajinder +handra +handra vs. State of +hhattisgarh: +hhattisgarh: *1==1- 1 "22 1:>D 1==1 "22 *2ri- 777D AI$ 1==1 "2 >@:D 1==1 2riLJ <=<@ *"2-.
7 Bhoop Ram vs. vs. State of .!. .!.:: *<;:;- 7 "22
78Smt. 78Smt. Kamlesh%Anr.vs. State of .!. B 1==1 2riLJ 78:= *Allahabad-.
@@
*<- 4here 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 inuiry 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. "ubsection *1- of section @; states that once the JJ) has treated the person as a juvenile and disposed of the case, no subseuent proof showing the person to be an adult can be considered to setaside an order passed by the JJ). /here is no need for the JJ) to conduct an inuiry about age when the juvenile is produced before it under orders of a court that has reached a finding of juvenility.
/he claim of juvenility could be raised for the first time by the accused before the agistrate or the "essions Judge, or before the #igh 2ourt or "upreme 2ourt. /he courts have repeatedly held that the court before which the plea of juvenility is raised must conduct an inuiry or direct an inuiry inuiry by a subordinate court, court, and record record a finding finding with regards regards to age. /his judicial trend trend has more recently been diverted from in SurinderSinghs case7> when the "upreme 2ourtrejected a plea of juvenility that was for thefirst time raised before the Ape! 2ourt.Legislature intervened by amending JJA1===7: to assure juveniles the envisagedtreatment. "ection >A was inserted to clarifythat courts should entertain at any stage,even after final disposal of the case, a pleathat an accused was below <: years of o f age atthe time of occurrence of o f the crime.
>A. ?rocedure to be followed when claim ofjuvenility is raised before any 2ourt.*<-4henever a claim of juvenility is raised before any 2ourt or a 2ourt is of the opinion that an accused person was a juvenile on the date of commission of the offence, the 2ourt shall make an inuiry, 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.
7>Surinder 7>Surinder Singh vs. State of .!.: *1==7.!.: *1==7- <= "22 18D 1==@ "22 *2ri- ><>D AI$ 1==7 "2 7:<<.
7:1==8 amendment.
@
"ection >provides for the measures to be taken by the agistrate when a juvenile is wrongly produced before him. /he agistrate is to record his opinion, and forward the juvenile and the proceedings before JJ). Initially there was confusion as to the manner in which the agistrate is reuired to record his opinion. "ome believed that the age determination inuiry should be conducted by the agistrate, whilst others, that the agistrate should merely transfer the case of a supposed juvenile to JJ) for conducting an age determination inuiry under section @; of JJA 1===. /he former position was adhered to by most agistrates and correctly so in view of the "upreme 2ourtEs 2ourtEs observations observations in BholaBhagats BholaBhagatscase. /he insertion of section >A has settled this issue as it categorically states that the court before which the claim of juvenility is made should conduct an inuiry to determine the age of the accused. #ence, the agistrate is obligated to conduct an age determination inuiry and arrive at a finding of juvenility before transferring the accused to the +bservation #ome and his case to JJ).
C.A3T1E$ 57 J(%ENILE J(STICE #OA$D #O A$D AND C$IMNAL C $IMNAL 3$OCEEDINGS @8
/he center of interest in the juvenile court is always the juvenile and his welfare, and not the act or its conseuence which might have resulted in his *or her- being brought before the court.7; 2riminal cases of a juvenile in conflict with law are to be dealt with by JJ), and not the regular criminal courts. /his is the mandate of juvenile legislation, enacted since the turn of the 1=th century century,, as well as the 2riminal 2riminal ?rocedure ?rocedure 2ode <:;: <:;: and <;>7. S&)"$'n 27 ' CrPC 197 statesB /'urisd /'urisdi)t i)tion ion in the )ase )ase of juveni juveniles les., ., An" offen)e offen)e not punisha punishable ble 8ith 8ith death death or imprisonment for life* )ommitted b" an" person 8ho at the date 8hen appears or is brought before the +ourt is under the age of si=teen "ears* ma" be tried b" the )ourt of a +hief 'udi)ial Magistrate* or b" an" +ourt spe)iall" empo8ered under the +hildren A)t* 4F was not altered to bring it in conformity conformity with e!isting juvenile legislation. 4ith the enactment of juvenile legislation this provision of 2r?2 has become redundant. /he first Juvenile 2ourt in India was established in )ombay in <;1>. Initially it was presided over by a ?residency agistrate who used to sit for a few hours on fi!ed days. /hereafter, since <;@1, the Juvenile 2ourt was manned by a fulltime stipendiary agistrate who was assisted by a team of e!perts, such as ?+s, psychologists. /he 2hildren Acts provided for establishment of Juvenile 2ourts to handle cases of youthful offenders and neglected children. /his system of a single authority handling cases of both juvenile offenders and neglected children was diverted from from in <;:8, <;:8, when when on the the inte intern rnat atio iona nall arena arena,, adju adjudi dicat catin ing g the the guil guiltt of a juven juvenil ilee took took precedence over welfarism.
/he chief purpose for distinct handling of a juvenileEs case is that such case reuires a sociolegal approach as reformation and rehabilitation, and not punishment is the goal. &nder 7; 'uvenile 'usti)e 'usti)e and 'uvenile +orre)ti +orre)tion: on: !ride and !ruden)e* !ruden)e* .". "abnis *"omaiya ?ublications ?vt. Ltd., )ombay N ew 5elhi<;;8-, pg. :<.
@="ection 1;).
@>
JJA 1===, JJ) is the competent authority in relation to juveniles in conflict with law.@< /he constitution of the JJ) reflects this objective of juvenile legislation. /he JJ) has to tread a fine pathD juveniles are culpable for their criminal acts, but they should not be penaliGed for such action, instead the aim should be to persuade them away from the enticements of a life of crime. /he 1=== Act has given eual importance to the agistrate and the social workersD they jointly constitute the competent authority to deal with juvenile cases. /he JJ) consists of a etropolitan agistrate or a Judicial agistrate of the first class in a nonmetropolitan area, and 1 social workers one of whom at least should be a woman.@1 /he agistrate and the social workers are to function as a )ench, i.e., together, but their roles are distinct. /he agistrate plays an important role in deciding whether the juvenile has committed an offence or not. 4hen the JJ) 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 )arry 2. Feld that the agistrate takes care of the deed and the social workers of the needs ofthe juvenile.@7 /he JJ) is bestowed with the powersconferred upon a agistrate under 2r?2.@@/he etropolitan agistrate or Judicialagistrate of the first class, as the case maybe, is designated as the ?rincipal ?rincipal agistrate. agistrate.@In the event of any difference of opinionamongst the members of JJ) whilst passingany order, the majority opinion shall prevail. @8/he view of the ?rincipal agistrate willprevail when no majority opinion ispossible.@>
@<"ection 1*g- of JJA 1===.
@1"ection @*1- of JJA 1===.
@7 Bad Kids: Ra)e Ra)e and the transformation transformation of the the 'uvenile +ourt* +ourt* )arry 2. Feld, +!ford &niversity ?ress *<;;;-.
@@"ection @*1- of JJA 1===.
@ -bid.
@8"ection *@- of JJA 1===.
@:
JJ)s are reuired to be constituted in everydistrict by 1.@: /he JJ) is tohave fi!ed place, days and timings of itssittings. /he freuency of its sittings willdepend upon the pendency of cases before aparticular JJ). '!peditious completion of aninuiry by JJ) is vital so that the juvenileEslife is not unnecessarily disrupted for a longperiod, and his rehabilitation process startsat the earliest. ?rolonged incarcerationpending an inuiry causes trauma to thejuvenile thejuvenile,, which can be easily avoided.+bserv avoided.+bservation ation #omes generally generally have nofaciliti nofacilities es for vocational training nor ways tokeep juveniles occupied, thus resulting injuveniles getting restless and desperate. 5ueto prolonged incarceration there have beeninstances when juveniles have escape escaped d or tried tried to escape escape from from +bserv +bservati ation on #omes, #omes, orhave gone on a rampag rampagee causing causing destructionwithin the institution. /he law recogniGing the importance of speedyinuiry has mandated the JJ) to complete an inuiry within @ months from the date of its commencement, and if the same is not possible due to the special circumstances of a case, the JJ) is reuired to e!tend the stipulated period for completion of inuiry bya reasoned order.@; 4hen a juvenile case is said to have commencedD is it when thejuvenile is produced before the JJ) or is itwhen the chargesheet is filed or is it whenthe juvenileEs plea is recorded. /he "upreme2ourt in <;:8= has directed the statemachinery to ensure the e!peditious filing ofa chargesheet and co mpletion of a juvenileEs inuiryB /E. &e 8ould also dire)t that 8here a )omplaint is filed or first information report is lodged against a )hild belo8 the age of 4< "ears for an offen)e punishable 8ith imprisonment of not more than H "ears* the investigation shall be )ompleted 8ithin a period of three months from the date of filing of the )omplaint or lodging of the first information report and if the investigation is not )ompleted 8ithin this time* the )ase against the )hild must be treated as )losed93 /he judgment continues to say that the inuiry should be completed within 7 months from the date of filing of the chargesheet. /hus by this judgment the case against the juvenile, under the <;:8 Act, must be disposed of within 8 months at the latest. /he <;:8 Act provided, An inuiry @> -bid.
@:"ection @ of JJA 1==8.
@;"ection <@*<- of JJA 1===.
=SheelaBarse =SheelaBarse vs. nion of -ndia: *<;:8-ndia: *<;:8- 7 "22 871D <;:8 "22 *2ri- 71D <;:8 2riLJ <>78 *"2-.
@;
regarding a juvenile under this Act shall be held e!peditiously and shall ordinarily be completed within a period of three months from the date da te of its commencement, unless, for special reasons to be recorded in writing, the competent authority otherwise directs.< /he 1=== Act has increased this period to @months, and has allowed for the time to bee!tended by the JJ) having ha ving regard to thecircumstances of the case and in specialcases. "o in accordance with the prevailinglaw a juvenile case should generally bedisposed of within > months from his arrestat the latest. o period has been laid down under juvenilelegislation with regards to the time periodwithin which a chargesheet should be filedin a juvenile case. It is understood that whena different procedure is not laid down in acriminal statute, the procedure stipulatedunder the 2r?2 will apply.1 /he 2r?2 doesnot lay down the period of time within which achargesheet should be filed, but states thatan accused should be released on bail ifchargesheet is not filed within ;= days ofarrest if the offence is one punishable withdeath, life imprisonment or imprisonment fora term of <= years or more, and in case of anyother offence, if not filed within 8= days ofarrest.7 In case of a juvenile, "ection <8>2r?2 should be read as governing the timeperiod within which the chargesheet shouldbe filed, if the chargesheet is not filed withinthe stipulated period, the case against thejuvenile should be uashed.
5'&3$OD(CTION 5'&3$OD(CTI ON #E"O$E JJ# <. It is generally generally the the police police or "pecial Juvenil Juvenilee ?olice &nit &nit who produces produces a juvenile juvenile before before JJ). Any person or other agency so producing the juvenile must inform the concerned ?olice "tation or "J?& about such production. 1. /he juvenile juvenile is is to be produced produced before before JJ) within within 1@ hours of of his arrest arrest.. 7. If the JJ) JJ) is not sittin sitting, g, the juvenile juvenile may be produced produced before before a single single member. member. $ule <<*@<<*@of the odel $ules reuires the order passed by a single member of the JJ) on the juvenileEs production to be ratified by the JJ) at its ne!t sitting. sitting. <"ection 1>*7- of JJA <;:8.
1"ection @ of JJA 1===.
7"ection <8> of 2r?2.
=
@. /he "J?& "J?& or any other other police police personne personnell who produces produces a juvenil juvenilee before before the JJ) must submit a report before the JJ) indicating the particulars of the case, viG., the name, age and address of the juvenileD the circumstances in which the juvenile was apprehendedD that the juvenile was not lodged in police lockup or jailD that the parents or guardian and ?+ have been informed about the juvenileEs arrestD the reasons for delay, if production is after 1@ hours of arrestD etc. . /he /he "J?& "J?& or police police may may take take the the assi assist stanc ancee of a volu volunt ntary ary organi organiGa Gati tion on havi having ng the the reuisite skill, to prepare the report containing the social background of the juvenile, and to take charge of the juvenile pending p ending production before JJ).@
5'0 IN8(I$1 3$OCED($E #E"O$E JJ# <. ?ending ?ending inuiry, inuiry, the juvenile juvenile is is to be lodged lodged in the the +bservati +bservation on #ome. 1. /he JJ) should should release release the juvenile juvenile on baile!cept baile!cept in certain certain prescribe prescribed d circumstances circumstances.. 7. /he case is to to be regularly regularly placed beforet beforethe he JJ). If If the juvenile juvenile is not not released released on bail, bail, the JJ) should give short dates, and in no event should the ne!t date e!tend beyond < days of the previous date. @. +nce +nce the juveni juvenile le is lodged in the+bse the+bservat rvation ion #ome, #ome, the "J?& or the concern concerned ed police police station should not be given custody of the juvenile without the prior consent of the JJ). /he JJ) too should not give custody of the juvenile to the "J?& or the police, e!cept supervised custody in e!traordinary situations. In the event of the "J?& or police desiring to interrogate the juvenile or conduct a /est Identification ?arade, an application for such purpose should be made before the JJ), and the JJ) is to pass appropriate orders thereon. In case such application of the "J?& or police is allowed, the JJ) shall direct that the interrogation or /I? should be conducted in the presence of the "uperintendent of the +bservation #ome or the ?+. . /he JJ) has has to keep in mind the intere interest st of the juvenil juvenile, e, and play a proact proactive ive role role to ensure that the "J?& or police fittingly perform their functions. For e!ample, the JJ) should direct the police to file the charge sheet at the earliestD produce prosecution witnesses when instructed to do so.
@$ule <<*<1- of the odel $ules.
<
8. /he culmina culminati tion on of the invest investiga igatio tion n is bythe "J?& or police police filing filing a police police report report or charge sheet before the JJ). /he charge sheetcontains the name of the complainantDthe nature of informationD the name of thejuvenile in conflict with lawD witnessstatementsD etc. It is on the perusal of thechargesheet that the court determineswhether there is a prima facie case againstthe accused. If further evidence is obtainedafter filing the charge sheet, a supplementalchargesheet may be filed by the "J?& orpolice. >. +n the chargeshee chargesheett being filed, filed, the JJ) seeks the the ?+Es report, report, i.e., i.e., "ocial Investi Investigation gation $eport. /he ?+ whilst preparing the "I$ is to meet with the juvenile and his parents or guardian, and if necessary to visit the juvenileEs home. /he ?+ should mention in the "I$ 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 juvenileEs proper rehabilitation. /he "I$ plays a vital role at the time of sentencingD the JJ) is reuired to conside considerr this this report report prior prior to passin passing g any order order with with regard regardss torehab torehabili ilitat tation ion of the juvenile.8 An "I$ mayalso be sought from a recogniGed voluntary organiGation or any other means, especiallyin the event of the juvenile hailing from aregion outside the territorial jurisdiction ofthe JJ) entertaining the juvenileEs case. :. /he ne!t stage stage is to record record the plea of thejuveni thejuvenile, le, i.e., i.e., the juvenil juvenilee is asked whether whether hehas hehas or has not comm commit itte ted d the the offe offence nce.. /hej /hejuv uven enil ilee is brie briefl fly y info inform rmed ed about about theprosecutionEs case prior to recording hisplea. ;. If the juve juvenil nilee admit admitss to having having commit committe tedt dthe he offe offence nce,, the the JJ) JJ) may may hold hold that the juvenilehas committed the offence, and passappropriate orders as prescribed under section < of JJA 1===. 'ven if the juvenilepleads guilty, the JJ) may continue with theinuiry after passing a reasoned order as towhy it chose not to accept the juvenileEs plea.6enerally a plea of guilt is accepted by theJJ) e!cept if the JJ) 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./he practice wherebythe JJ), JJ), the ?+, or the "uperi "uperinten ntenden dentt orstaf orstafff of the +bserv +bservati ation on #ome #ome pressu pressuriG riGest esthe he juvenile to plead guilty should bediscouraged. +ften the juvenile pleads guiltybecause he or his parents or guardian aretold that pleading guilty is the only recoursefor uick "ection <>7 of 2r?2.
8"ection <*1- of JJA 1===.
1
disposal of his case. 2ompelling ajuvenile to submit to a false plea of guiltcauses him great distress even if he isreleased as a conseuence, mainly becausethe juvenile feels that he is branded as acriminal though he has not done any wrong. <=. A juveni juvenile le who who has pleade pleaded d not guilty guilty maybe maybe allo allowed wed by the the JJ) JJ) to alte alterr his his plea plea andpl andplea ead d guil guilty ty if it is in the the inte intere rest st of thej thejuve uveni nile le to do so, so, and and he has has acte acted d 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 reuest by the juvenile. <<. <<. 4hen 4hen the the juven juvenil ilee plead pleadss not not guil guilty ty or hisp hisple leaa of guilt guilt is not accept accepted ed by the JJ), JJ), thejuvenileEs case is ready for the recording ofevidence. /he prosecution witnesses are tobe tobe summon summoned ed and their their evidenc evidencee to berecor berecorded. ded. JJ)s JJ)s should should follow follow the practi practice ce ofdi ofdire rect ctiing the A??s ??s
to
scr scruti utiniGe niGe the char charge ge sheet heet,a ,and nd only only summ ummon the
necessarywitnesses so that the case is not needlesslyprolonged. <1. 4hilst 4hilst conducting an inuiry inuiry,, the JJ)should JJ)should follow follow the procedure procedure laid down in2r?2 for trials in summons cases. > In casesinvolving serious offences, to safeguard therights of the juveniles, the JJ) should recordthe evidence in detail as in a warrant case. <7. /he prosec prosecuti ution on witnes witnesses ses are e!amined e!aminedby by the A?? on behalf behalf of the prosecut prosecution ion and crosse!amined by the juvenileEs lawyer. /he evidence is recorded by the JJ), and copy of the otes of 'vidence should be contemporaneously given to the juvenileEs lawyer. <@. /he JJ) must must do all in its power to seetha seethatt prosec prosecuti ution on witnes witnesses ses are presen presentt togive 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 JJ) should issue a bailable or non bailable warrant to guarantee the witnessE presence, or else call upon the prosecution to close their case. <. After the prosecution prosecution closes its case, thesection thesection 7<7 2r?2 statement statement of the juvenile juvenile is recorded by the JJ). %uestions will be put by the JJ) to the juvenile to enable him to e!plain any portion of the evidence that incriminates him. o oath is administered at the time of recording the section 7<7 2r?2statement of the juvenile, nor is he liable to punishment for giving a false answer. /he statement of the juvenile cannot be a substitute for the prosec prosecuti utionE onEss evidenc evidenceD eD thepro theprosec secuti ution on has to indepen independen dently tly prove prove that that the juvenile has committed the offence. /he juvenileEs juv enileEs statement has to be considered by the JJ) in conjunction with the evidence adduced by the prosecution. >"ection @ of of JJA 1===.
7
<8. /he juvenile juvenile is given an opportunity opportunity tolead defense defense evidence if he so desires. desires. 5efense witnesses are crosse!amined by the prosecution. <>. /hereaf /hereafter ter the prosec prosecuti ution on and thedef thedefens ensee put forth forth their their respect respective ive oral oral argume arguments nts.. 4ritten arguments in support of their case, including the judgments they rely upon, may be submitted by either party to theJJ).: <:. +n the basis of the evidence evidence garnered andthe arguments arguments advanced, the JJ) will pass an order disposing the case. If the JJ) 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.
5'2 A33$E.ENSION &nde &nderr juve juveni nile le legi legisl slat atio ion, n, the the word word /apprehension3 repla places ces the word /arrest3. /arrest3 . /he precautions and safeguards contained in the 2onstitution of India and "upreme 2ourt judgments with regards to the rights of an accused on arrest also apply to juveniles in conflict with law. /he 2onstitutional provisions in this respect are reproduced hereunderB
Art. 11*<-B 7o 7o person 8ho is arrested shall be detained in )ustod" 8ithout being informed* as soon as ma" be* of the grounds for su)h arrest nor shall he be denied the right to )onsult* and to be defended b"* a legal pra)titioner of his )hoi)e.
C ver" person 8ho is arrested and detained in )ustod" shall be produ)ed before the nearest magistrate 8ithin a period of t8ent",four hours of su)h arrest e=)luding the time ne)essar" for the journe" from the pla)e of arrest to the )ourt of the magistrate and no su)h person shall be detained in )ustod" be"ond the said period 8ithout the authorit" of a magistrate.3
/he "upreme 2ourt in Dilip in Dilip K. Basu vs. State S tate of &est &est Bengal %Ors. %Ors.;issued guidelines to befollowed in all cases of arrest or detention tilllegal provisions were made in that behalf asa measure to prevent custodial violence.?olice personnel should bear accurate,visible and clear :"ection7<@ of of2r?2.
;*<;;>- < "22 @<8D <;;> "22 *2ri- ;1D AI$ <;;> "2 8<=.
@
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 andcoun andcounter tersi signed gned by the arrest arrestee. ee. An arrest arrestedpe edperso rson n shall shall be entitl entitled ed to have one friend friend orrelative or other person known to him orhaving interest in his welfare being informed,as soon as practicable, that he has beenarrested been arrested and is being detained at a particularplace.
"ection <=*<- of JJA 1=== provides for a juvenile to be produced before the JJ) within twenty four hours of his arrest. 5etaining a person in custody beyond this period amounts to illegal detention. /he )ombay #igh 2ourt in BabanKhandu in BabanKhandu Rajput vs. State of Maharashtra
&nder section <7 of JJA 1===, the police assoon as ma y be after the arrest, inform
/aC the parent or guardian of the juvenile* ifhe )an be found of su)h arrest and dire)t himto be present at the Board Board before 8hi)h thejuvenile 8ill 8ill appearI and
bC the proba probatio tion n offi)e offi)err of su)h su)h arrest arrest toenabl toenablee him to obtain obtain inform informati ation on regar regardi dingt ngthe he ante)edents and famil" ba)$ground ofthe juvenile and other material )ir)umstan)esli$el" to be of assistan)e to the Board forma$ing in0uir".3
"imilar provisions were there in )2A <;@:8
8= 1==1 All$*2riAll$*2ri- <7>7.
8<"ections 88 and 8> of )2A <;@:.
81"ection <; of JJA <;:8.
or person of juvenileEschoice and the ?+ has been informed abo aboutthe utthe juvenileEs arrest. oreover, oreover, theparticulars so furnished by the police shouldbe gotten confirmed from the juvenile
.
5'4 #AIL )ail is the release of an accused person pending investigation andCor trial, whilst at the same time ensuring his future attendance in court at the trial stage. /he 2r?2 divides offences into bailable and nonbailable offences. 4hether an offence is bailable or not is denoted in the First "chedule to the 2r?2, 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.87 In case of a nonbailable offence, the grant of bail is not as of rightD it is for the court to decide whether bail should be granted or refused depending upon the facts and circumstances of each case.8@ /he 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. 2ertain instances have been stipulated in the 2r?2 where bail is to be granted even if the offence is nonbailable, such as the accused is a woman, or sick, or infirm. /he position with regards to bail is very different under juvenile jurisprudence. "ince the enactment of different 2hildren Acts, the grant of bail has been mandatory under juvenile legislation e!cept in certain prescribed instances that could cause harm to the child if so released. For e!ample, )2A <;@: provides for a child who has committed a nonbailable offence to be released by a police officer 8 or a court,88 e!cept if releasing the child on bail is likely to bring the child into association with any reputed criminal or shall e!pose him or her to moral danger or
87"ection @78 of 2r?2.
8@"ection @7> of 2r?2.
8"ection 8@ of )2A <;@:.
88"ection 8@A of )2A <;@:.
8
where his or her release would defeat the ends of justice. $eleasing a juvenile on bail is essential as it prevents the disruption of his life. "ection <: dealt with )ail and custody of juveniles under the <;:8 Act, and is reproduced hereunderB /4C &hen an" person a))used of a bailable or non,bailable offen)e and apparentl" a juvenile is arrested or detained or appears or is brought before a 'uvenile +ourt* su)h person shall* not8ithstanding an"thing )ontained in the +ode of +riminal !ro)edure* 4FHE of 4FHJC* or in an" other la8 for the time being in for)e* be released on bail 8ith or 8ithout suret" but he shall not be so released if there appears reasonable grounds for believing that the release is li$el" to bring him into asso)iation 8ith an" $no8n )riminal or e=pose him to moral danger or that his release 8ould defeat the ends of justi)e. C &hen su)h person having been arrested is not released on bail under sub,se)tion 4C b" the offi)er,in,)harge of the poli)e station* su)h offi)er shall )ause him to be $ept in an observation home or a pla)e of safet" in the pres)ribed manner but not in a poli)e station or jailC until he )an be brought before a 'uvenile +ourt. EC 8hen su)h person is not released on bail under sub,se)tion 4C b" the 'uvenile +ourt it shall* instead of )ommitting him to prison* ma$e an order sending him to an observation home or a pla)e of safet" for su)h period during the penden)" of the in0uir" regarding regarding him as ma" be spe)ified in the order.3 order.3 #ence, even under the <;:8 Act, it was obligatory upon the Juvenile 2ourt to release the juvenile on bail e!cept in certain prescribed instances. /his provision also clarifies that a juvenile under no circumstances can be kept in a police lockup or jail. A similar provision for bail e!isted under the 1=== Act8> with minor modifications, viG., iC a juvenile )ould not be released on bail if su)h relea release se e=posed e=posed him to /moral /moral*ph *ph"si "si)al )al or ps")hol ps")hologi ogi)al )al danger danger3* 3* and iiC iiC thepol thepoli)e i)e 8ere 8ere obligated to pla)e a juvenile onl"in the Observation (ome* and not in a /pla)eof safet"3. /aking /aking note of this dichotomy dichotomy,, the 1==8 amendment to the 1=== Act has inserted inserted that a juvenile may when released on bail be placed under the supervision of a ?robation +fficer or under the care of any an y fit institution or fit person.8: 8>"ection <1 of JJA 1===.
8:"ection <1*<- of JJA 1===.
>
12.)ail of juvenile. O
4C &hen &hen an" person person a))use a))used d of a bailab bailable le or non, non, bailab bailable le offen)e* offen)e* and apparent apparentl" l" a juvenile* is arrested arrested or detained or appears or is brought before a Board* su)h person shall* not8ithstanding an"thing )ontained )o ntained in the +ode of +riminal !ro)edure* 4FHE of o f 4FHJC or in an" other la8 for the time being in for)e* be released on bail 8ith or 8ithout suret" or pla)ed under the supervision of a !robation Offi)er or under the )are of an" fit institution or fit person but he shall not be so released if there appear reasonable grounds for believing that the release is li$el" to bring him into asso)iation 8ith an" $no8n )riminal or e=pose him to moral* ph"si)al or ps")hologi)al danger or that his release 8ould defeat the ends of justi)e. C &hen su)h person having been arrested is not released on bail under sub,se)tion 4C b" the offi)er,in,)harge of the poli)e station* su)h offi)er shall )ause him to be $ept onl" in an observation home in the pres)ribed pres)ribed manner until he )an be brought before a Board. EC &hen su)h person is not released on bail under sub,se)tion 4C b" the Board it shall* instead of )ommitting him to prison* ma$e an order sending him to an observation home or a pla)e of safet" for su)h period during the penden)" of the in0uir" regarding him as ma" be spe)ified in the order.3 It is hoped that this amendment results in agreater number of juveniles being released on bailB 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 fit institution or a fit person willing to take temporary care of a juvenile pending inuiry may file a bail application before JJ).JJ)s should not wait for a bail application tobe filed on behalf of a juvenile, they should be proactive and suomoto grant bail on befitting conditions. /he )eijing $ules provide that 5etentionpending trial shall be used only as a measure of last last resort resort and for the shorte shortest st possi possible bleperi period od of time time8; and 4henever 4henever possible,det possible,detention ention pending trial shall be replaced byalternative measures, such as closesupervision, intensive care or placement witha family or in an educational setting orhome.>= At clause <=.1, the )eijing
8;2lause <7.< of the )eijing $ules.
>=2lause <7.1 of the )eijing $ules.
:
$ule $ulesp spro rovi vide de that that upon upon appr appreh ehen ensi sion on of a juve juveni nile le,a ,a judg judgee or othe otherr comp compet eten entt body body shouldwithout delay consider the issue of release ofthe juvenile. /he Indian courts have repeatedly held thatbail can only be refused to a juvenile on thethree prescribed grounds,>< and not on thegrounds of heinousness of offence>1 or primafacie proof of guilt.>7
5'5 A33EAL /he word KappealE means the right of carrying a particular case from an inferior to a superi superior or 2ourt 2ourt with with a view to ascert ascertain ain whethe whetherr the judgme judgment nt is sustai sustainabl nable. e.>@ It is an application for the judicial e!amination by a higher court of the decision of any inferior court.> /he statute statute prescribes prescribes the court or authority before before which an appeal is to be preferred, preferred, and the time within which the appeal is to be filed. &nder JJA 1===, any order passed by the JJ) may be challenged in appeal before the "essions 2ourt. /he appeal is to be filed within thirty days of the JJ)Es passing passing the order.
1. Appeals Appeals. . 4C Subje)t to the provisions of this se)tion* an" person aggrieved b" an order made b" a )ompetent ) ompetent authorit" under this A)t ma"* 8ithin thirt" da"s from the date of su)h order* prefer an appeal to the +ourt of Session: Session:
>< Dattatra" #. #. San$he vs. State State of Maharashtra %Ors.B %Ors.B 1==7 All$*2ri- <8;7 *)ombay-D Ranjit *)ombay-D Ranjit Singh vs. State of (.!. (.!. B 1== 2riLJ ;>1 *#.?.-.
>1Vi$$" >1Vi$$" alias Vi$ram Singh vs. State of .!.: 1==7 2riLJ 7@> *Allahabad-D Vijendra Kumar Mali* et). vs. State of .!.: 1==7 .!.: 1==7 2riLJ @8<; *Allahabad-.
>7 Rahul Mishra vs. State of M.! M.!..: 1==< 2riLJ 1<@ *.?.-.
>@6he >@6he +ode of +riminal !ro)edure, !ro)edure , $atanlalN5hirajlal *'ighteenth 'dn.- 1==8, 4adhwaN2o.O agpur, pg.<71;.
> A +on)ise +on)ise Di)tionar" of 1a8 Se)ond Se)ond dition, dition, <;;=, +!ford &niversity ?ress, pg.1@.
;
!rovided that the +ourt of Session ma" entertain the appeal after the e=pir" of the said period of thirt" da"s if it is satisfied that the appellant 8as prevented b" suffi)ient )ause from filing the appeal in time.3
An appellant is the party who files an appeal as he is aggrieved by the JJ)Es order. "ection 1*1of JJA 1=== bars the filing of an appeal from an order passed by the JJ) acuitting the juvenile. #ence, an order of acuittal is a final order that cannot be challenged in appeal before the "essions2ourt. "ection 1*7- of JJA 1=== bars the filing of a second appeal from an order passed in appeal by the "essions 2ourt. #ence, an order of conviction can only be challenged once by the juvenile. /he Limitation Act <;87 deals with the computation of the stipulated period within which the appeal is to be filed. /he period of thirty days is to be calculated from the day after that on which the JJ) passes its order.>8 /he days spent for obtaining certified copy of JJ)Es order is to be e!cluded whilst computing the limitation period, but the days da ys prior to making an application for certified copy is to be included. /hus, an application for certified copy of the order should be made as soon as the order is passed. As under the provision of section 1*<- of JJA 1===, section of the Limitation Act also gives the superior court the power to condone delay when satisfied that there was adeuate reason for the delay. A provision identical to section 1 was contained in JJA <;:8. >> &nder )2A <;@:, only the final order passed by the Juvenile 2ourt or the 2ourt having the powers of a Juvenile2ourt could be challenged in appeal,>: and theappeal was to be preferred within ;= days.>;"ubseuent juvenile legislation allows thepreferring of an appeal before the "essions2ourt within thirty days da ys from any orderpassed by the competent authority.
>8"ection <1 of the Limitation Act Act <;87.
>>"ection 7> of JJA <;:8.
>:"ection ;@ of )2A <;@:.
>;"ection ;8*<- of )2A <;@:.
8=
5'6 $E%ISION &nder juvenile legislation, the #igh 2ourt hasbeen empowered with revisional jurisdictionto e!amine the legality or propriety of anyorder an yorder passed by the JJ) or the "essions2ourt.
7. $evision. O 6he (igh +ourt ma"* at an"time* either of its o8n motion or on anappli)ation re)eived in this behalf* )all for there)ord of an" pro)eeding in 8hi)h an")ompetent authorit" or +ourt Session haspassed an order for the purpose of satisf"ing itself as to the legalit" or propriet" of an" su)h order order and ma" pass su)h order in relation relation thereto thereto as it thin$s fit: !rovided that the (igh +ourt shall not pass an order order under this se)tion prejudi)ial to to an" person 8ithout giving him a reasonable opportunit" of being heard.3 A provision identical to section 7 was contained in JJA <;:8.:= +rdinarily, a finding of guilt passed by the JJ) is challenged in appeal before the "essions 2ourt, thereafter the order passed in appeal by b y the "essions 2ourt may be uestioned by either party before the #igh 2ourt in revision. #owever, any person aggrieved by an order passed by the JJ) may directly file a revision application to the #igh 2ourt. In so doing, the party aggrieved by a finding of guilt loses the opportunity to challenge the order twice, once in appeal and ne!t in revision. A revision application before the #igh 2ourt may be filed by the juvenile from an order passed by the "essions 2ourt confirming the JJ)Es JJ)Es order. order.
C.A3TE$ 67 3OWE$S O" T.E CO($T 6'&3OWE$ O" .IG. CO($T AND SESSION CO($T (NDE$ J(%ENILE LEGISLATION
:="ection 7: of JJA <;:8.
8<
"ection 8*1- of JJA 1===B/6he 1===B/6he po8ers )onferred on the Board b" or under this A)t ma" also be e=er)ised b" the (igh +ourt and the +ourt of Session* 8he n the pro)eeding )omes before them in appeal* revision or other8ise.3 /his provision allows the #igh 2ourt and the "essions 2ourt to determine issues and pass orders orders regardin regarding g a juveni juvenile le when the same same is brough broughtt before before them them in appeal appeal,, revisi revision on or otherwise. /he word otherwise is very wide and empowers the #igh 2ourt and the "essions 2ourt 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 JJ). A provision similar to section 8*1- was contained in JJA <;:8.:<
6'0 J(DGMENTS SANJ SANJA AY SURI SURI & ANR. ANR. VS. VS. DELH DELHII ADMI ADMINI NIST STRA RATI TION ON,, DELH DELHII & ANR82 /his matter dealt with the incarceration of children in /ihar jail, and resulted in a separate structure being erected to keep juveniles. /he "upreme 2ourt had appointed the 5istrict Judge to inuire into the conditions prevailing in the juvenile ward of /ihar jail. /he inuiry revealed, amongst other things, that juvenile prisoners were se!ually assaulted by adult prisoners. /he "upreme 2ourt lamentedB
/&e are an=ious to ensure that no )hild 8ithin the meaning of the +hildrens A)t is sent to jail be)ause other8ise the 8hole obje)t of the +hildrens A)t of prote)ting the )hild from bad influen)e of jail life 8ould be defeated.3 6his judgment instru)ted /ever" Magistrate or trial 'udge authoriLed to issue 8arrants for detention of prisoners to ensure that ever" 8arrant authoriLing detention spe)ifies the age of the person to be detained. 'udi)ial mind must be applied in )ases 8here there is doubt about the age not ne)essaril" b" a trial and ever" 8arrant must spe)if" the age of the person to be detained.3 >urther the jail authorities 8ere also :<"ection >*7- of JJA <;:8.
:1<;:: "upp "22 <8=D <;:: "22 *2ri- 1@:D AI$ <;:: "2 @<@D <;:: 2riLJ >= *"2-.
81
instru)ted* /&e )all upon the authorities in jails throughout -ndia not to a))ept an" 8arrant of detention as a valid one unless the age of the detenu is sho8n therein. B" this order of ours* 8e ma$e it )lear that it shall be open to the jail authorities to refuse to honour a 8arrant if the age of the person remanded to jail )ustod" is not indi)ated.3
STATE O !ARNATA!A VS. HARSHAD 8" /he uestion before the #igh 2ourt was whether the "essions 2ourt or the Fast /rack 2ourt has jurisdiction to entertain a juvenile case. /he court categorically held that in view of section 8*
Furthermore, upon the submission of the ?ublic ?rosecutor that only five Juvenile Justice )oards have been constituted to deal with the entire "tate, and that each Juvenile Justice )oard handles juvenile cases of a group of districts, the #igh 2ourt directed the "tate 6overnment may consider the necessity of establishing one Juvenile Justice )oard for each district.
RAJINDER #HANDRA VS. STATE O #HHATISGARH & ANR 8$
In this case the "upreme 2ourt was facedwith the uestion as to how an accused on the border of <8 years was to be dealt with, and held in favour of holding the accused to be ajuvenile. In its judgment whilst referring to ArnitDas to ArnitDas )ase, )ase, the "upreme 2ourt held that/9this that/9this )ourt has* on a revie8 of judi)ialopinion* held that 8hile dealing 8ith 0uestionof determination of the age of the a))u a))use sed d fort forthe he purpos purposee of findi finding ng out 8heth 8hether er he is ajuve ajuveni nile le or not* not* a h"pe h"per, r,te te)h )hni) ni)al al appro approa)h a)hsho should uld not be adopted adopted 8hile 8hile appre appre)ia )iatin ting g theevid theeviden) en)ee addu)ed addu)ed on behalf behalf of the a))used insupport of the plea that he 8as a juvenile andif t8o vie8s ma" be possible on the said eviden)e* the )ourt should lean in favour of holding the a))used to be a juvenile inborderline )ases.3 :71== 2riLJ 17> *3A$A/A3A-.
:@*1==1- 1 "22 1:>D 1==1 "22 *2ri- 777D AI$ AI$ 1==1 "2 >@:D 1==1 2riLJ <=<@ *"2-.
87
%HOLA %HAGAT % HAGAT VS. STATE STATE O %IHAR 8 )hola )hagat claimed to be <: years of age inhis section 7<7 2r?2 statement which was recorded @ years after commission of theoffence, and his coaccused 2handra "en ?rasad and ansen ?rasad claimed to be <>years and 1< years, respectively. /he #igh2ourt did not avail him the protection ofjuvenile legislation, viG., the )ihar 2hildrenAct <;>=, on the ground that other than thestatement of the accused there was no other material to support that )hola )hagat and the others were juveniles on the date ofoccurrence of the offence. /he "upreme2ourt opined that /-f the (igh +ourt haddoubts about the )orre)tness of their age asgiven b" the appellants and also as estimatedb" the trial )ourt* it ought to have ordered anen0uir" to determine their ages. -t should nothave brushed aside their plea 8ithout su)han en0uir".3
/he "upreme 2ourt held )hola )hagat and his coaccused to be juveniles, /hecorrectness of the estimate of age as given bythe trial court was neither doubted noruestioned by the state either either in the #igh2ourt #igh2ourt or in this 2ourt. 2ourt. /he parties have,therefore have,therefore,, accepted accepted the correctness correctness of the estimate of age of the three appellants asgiven by the trial court. /herefore, thesethree appellants appellants should not be denied thebenefit thebenefit of the provisions provisions of a sociallypr sociallyprogress ogressive ive statute. In our considere consideredopi dopinio nion, n, since since the plea plea had been been raised raised in the#ig the#igh h 2ourt 2ourt and because 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 suarely fell within the definitionof the e!pression Kchild KchildE. E. 4e are under under theseci thesecircu rcumst mstanc ances es reluct reluctant ant to ignore ignore andover andoverloo look k the benefi beneficia ciall 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 estima estimate te hasnot hasnot been put in issue issue before before any forum. forum.4h 4hils ilstt uashi uashing ng the senten sentence ce of life life imprisonmen imprisonmentt and releasing releasing )hola
)hagat,2handr )hagat,2handraa "en ?rasad and ansen ?rasad,thou ?rasad,though gh
upholding their conviction, the Ape!2ourt observed,
<:. Before <:. Before parting 8ith this judgment* 8e 8ould li$e to re,emphasise that 8hen a pleais raised on behalf behalf of the a))use a))used d that that he 8asa 8asa )hild )hild 8ithi 8ithin n the meaning meaning of the defini definiti tionof onof the :*<;;>- : "22 >1=D AI$ <;;: "2 178.
8@
e=pression under the A)t* it be)omesobligator" for the +ourt* in )ase it entertainsan" doubt about the age as )laimed b" thea))used* to hold an in0uir" itself fordetermination fordetermination of the 0uestion of age of thea))used or )ause an in0uir" to be held andsee$ a report regarding the same* ifne)essar" ifne)essar" b" as$ing as$ing the parties to leadeviden)e leadeviden)e in that regard. regard. Keeping in vie8 thebenefi)ial thebenefi)ial nature of the so)iall",orientedlegislation* it is an obligation of the +ourt8hen su)h a plea is raised to e=amine thatplea 8ith )are and it )annot fold its hands and8ithout returning a positive finding regardingthat regardingthat plea* den" the benefits of the provisionsto provisionsto an a))used. 6he +ourt must hold an in0uir"and return a finding regarding the age one8a" or the other. &e e=pe)t the (igh +ourtsand the subordinate +ourts to deal 8ith su)h)ases 8ith more sensitivit"* as other8ise theob theobje je)t )tss of the the A)ts A)ts 8oul 8ould d be frus frustr trat ated ed andt andthe he effo effort rtss of the the legi legisl slat atur uree to refo reform rm thedelin0uent )hild and re)laim him as a usefulmember of the so)iet" 8ould be frustrated.
6he (igh +ourts ma" issue administrativedire)tions to the subordinate +ourts that8henever su)h a plea is raised before themand the" entertain an" a n" reasonable doubtabout the )orre)tness of the plea* the" mustas a rule* )ondu)t an in0uir" b" givingopportunit" to the parties to esta establ blis ish h thei theirr rres espe pe)t )tiv ivee )lai )laims ms and retu return rn a find findin ing g regar regardi ding ng the the age of the the a))us a))used ed )on)ernedand then deal 8ith the )ase in the mannerprovided b" la8.3
JAY JAYA MALA VS. HOME SE#RETAR SE#RETARY Y, GOVERNMENT GOVERNMENT O JAMMU & !ASHMIR8'
In this case the Ape! 2ourt took /judi)ial noti)e that the margin of error in age as)ertained b" radiologi)al e=amination is t8o "ears on either side3.
MASTER RAJEEV SHAN!ARLAL (ARMAR & ANR. VS. OI#ER)IN) #HARGE, MALAD (OLI#E STATION & ORS 8*
/he accused was declared a juvenile by the "essions 2ourt, but was not shifted to the :8*<;:1- 1 "22 7:D <;:1 "22 *2ri- =1D AI$ AI$ <;:1 "2 <1;>D <;:1 2riLJ <>>> *"2-.
:>1==7 2riLJ @11 *)+-.
8
+bservation #ome nor was his case transferred to the JJ). It was only the #igh 2ourtEs intervention that resulted in $ajeev being shifted to the +bservation #ome three months after having been declared declared a juvenile. juvenile. /6hus* there 8as a gap of more than three months in )arr"ing out the order passed b" the learned Additional Sessions judge. 6he order dated Hth Mar)h GGE 8as 8as impl implem ement ented ed and and affe affe)t )ted ed onl" onl" on 4Eth 4Eth 'une 'une GGE. GGE.3 3 /he e!cuse of the jailor for not comply complying ing with with the courtE courtEss orders orders was the nonavai nonavailab labili ility ty of escort escort.. $ajeev $ajeev was awarde awarded d compensation of $s.<,===C by the #igh 2ourt. /he "tate challenged this order before the "upreme 2ourt, but to no avail.
MASTER SALIM I!RAMUDDIN ANSARI & ANR. VS. OI#ER)IN) #HARGE, %ORIVALI (OLI#E STATION, MUM%AI & ORS 88
In this case the e!cuse of the jailor for not transferring the accused to the +bservation #ome was that the order of the "essions 2ourt declaring "alim a juvenile, though transmitted by the $egistrar of "essions 2ourt and received by the jail, was misplaced.
&nder the #igh 2ourtEs order, "alim was transferred to the +bservation #ome on ; th July 1==@, i.e. i.e.,, seve seven n mont months hs afte afterr the the "essi "ession onss 2our 2ourtt orde orderr. "alim "alim was was awar awarde ded d compen compensa sati tion on of $s.<,==,===C . /he )ombay #igh 2ourt e!amined the granting of bail under section <1 of JJA 1===, and observed, /A))ording to this se)tion* the first petitioner )an be released on bail 8ith or 8ithout suret". suret". 1oo$ing to the pe)uliar fa)ts and )ir)umstan)es* 8e dire)t the 'uvenile 'usti)e Board to release the first petitioner on his e=e)uting personal bond onl".3
GO(INATH GHOSH VS. STATE O +EST %ENGAL 8
::1== 2riLJ >;; *)+-.
:;<;:@ "upp "22 11:D <;:@ "22 *2ri- @>:D AI$ <;:@ "2 17>D <;:@ 2riLJ <8: *"2-.
88
/he accused claimed before the "upreme2ourt for the first time that he was below <:years of age on the date of occurrence andentitled to the benefits of the 4est )engal2hildren Act <;;, thus his conviction and lifesentence under section 7=1 I?2 be setaside. /he "upreme 2ourt framed the followingissue for consideration of the "essionsJudgeB4hat was the age of the accused 6opinath6hosh *appellant- on the date of the offencefor which he was tried and convictedP /he "essions Judge conducted a detailedinuiryD the accused was sent for medica medicale! le!ami aminati nation, on, the accuse accusedE dEss mother mother and the#ea the#eadma dmaste sterr of the school school he attend attended ed weree!amined by the court, and 6opinath6hoshwas declared a juvenile.
/he "upreme 2ourt in its judgment also dealtwith the late raising of the claim of juvenilityby the accused, /98e )onsider it proper notto allo8 a te)hni)al )ontention that this)ontention is being raised in this +ourt for thefirst time to th8art the benefit of theprovisions being e=tended to the appel appella lant nt** ifhe ifhe 8as 8as other other8i 8ise se enti entitl tled ed to it.3 it.3 /hec /hecon onvic victi tion on and and sent sentenc encee was was held held to beunsustainable and setaside. 6opinath6hoshwas granted bail, and his case was transferredto the compet competent ent author authority ity for procee proceedin ding g inaccor inaccordanc dancee with with the law applica applicable ble tojuven tojuvenile iles. s. 6opinath6hosh was in prison foralmost <= years, but the "upreme 2ourtchose not to release him itself becauseneither his antecedents nor the backgroundof his family are before us. It is difficult for usto gauge how the juvenile court would havedealt with him.
In this judgment the Ape! 2ourt has taken/noti)e taken/noti)e of a developing situation in re)entmonths in this +ourt that the )ontention aboutthe age of a )onvi)t and )laiming the benefitof the relevant provisions of the A)t dealing8ith juvenile delin0uents prevalent in variousStates is raised for the first time in this +ourtand this +ourt is re0uire re0uired d to start that in0uir"afresh.3 in0uir"afresh.3 /he /he "upreme 2ourt, hence, felt theneed to identify a solutionB
/&e are of the opinion that 8henever a )aseis brought before the Magistrate and thea))used appears to be aged 4 "ears " ears orbelo8* before before pro)eeding 8ith the trial or underta$ing u nderta$ing an in0uir"* an in0uir" must bemade about the age of the a))used on thedate of the o))urren)e. 6his ought to be mores moreso o 8here 8here spe)ia spe)iall A)ts A)ts dealin dealing g 8ith 8ith juveni juveniled ledeli elin0ue n0uents nts are are in for)e. for)e. -f ne)ess ne)essar" ar"** theMagistrate ma" refer the a))used to theMedi)al Board or the +ivil Surgeons* as the)ase ma" be* for obtaining )redit8orth"eviden)e about age. 6he Magistrate ma" as8ell )all upon a))used
8>
also also to lead lead eviden) eviden)eabo eabout ut his age. age. 6here 6hereaft after er** the 1earne 1earnedMa dMagis gistra trate te ma" pro)e pro)eed ed in a))ordan)e 8ithla8. 6his pro)edure* if properl" follo8ed*8ould avoid a journe" up to the Ape= +ourtand +ourtand the return return journe" to the grass,root) grass,root)ourt. ourt. -f ne)essar" ne)essar" and found e=pedient* e=pedient* the(igh the(igh +ourt ma" on its administrative sideissue ne)essar" instru)tions to )ope 8ith thesituation herein indi)ated.3
RAVINDER SINGH GOR!HI VS. STATE O U.( -
As in #opinath#hoshs #opinath#hoshs )ase, )ase, in this case toothe contention of juvenility was raised for thefirst time before the "upreme 2ourt. $avinder6orkhi claimed before the "upreme 2ourt tobe a juvenile on the date of offence, i.e., <thay <;>;, under the then prevailing &.?.2hildren Act <;<. /he uestion with regardsto the age of the accused was referred to the"essions Judge. A "chool "chool Leavin Leaving g 2erti 2ertific ficate atewas was relied relied upon by the appella appellant nt wherei wherein n thedat thedatee of birth birth was recorded as
/he "upreme 2ourt rejected the finding ofthe "essions Judge and the appeal wasdismissed. /he "upreme "upreme 2ourt observedthat, observedthat, /6he entries made in the s)hool leaving)erti leaving)ertifi)at fi)ate* e* evidentl" evidentl" had been prepared forthe purpose of the )ase.3 )ase.3 /he second 2opyand not the original school leaving leaving certificat certificatewas ewas produced in court. oreover, oreover, the#eadmast the#eadmaster er who gave evidence evidence did notproduce the admission register. /his was theundoing. /6he theundoing. /6he original register has not been produ)ed. 6he authenti)it" of the saidregister saidregister** if produ)ed* )ould have been loo$edinto.3
SUNIL RATHI VS. STATE O U.(
/he uestion before the "upreme 2ourt waswhether the appellant on the date ofoccurrence was a juvenile. /he #igh 2ourthad on e!amination of the documentary evidence held that the same did ;=*1==8- "22 :@D 1==8 2riLJ 1>;< *"2-.
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notconclusi notconclusively vely prove that "unil $athi was ajuvenile. ajuvenile. /he "upreme 2ourt set aside theorder of the #igh 2ourt and directed that theappellant be e!amined by the edical )oardto ascertain his age. @. &e have perused the order of the (igh+ourt. (igh+ourt. 6he (igh +ourt )ame to the )on)lusion*af )on)lusion*after ter )onsidering the )ertifi)ates produ)ed*that the" did not )on)lusivel" prove that he8as a juvenile. (o8ever* 8hen this obje)tion8as raised* the petitioner 8as not sent fore=amination b" the Medi)al Board to as)ertainhis age. 7ormall"* in a )ase 8here theeviden)e is not )lear and )onvin)ing* thereport of the Medi)al Board is of someassistan)e.3
(RADEE( !UMAR VS. STATE O U.( 2
All the three appellants were declared tohave fallen within the definition of childunder the &.?. 2hildrenEs Act <;< on the dateof occurrence. /he appellants, viG., ?radeep 3umar, 3rishan 3ant and Jagdish, had insupport of their respective claims, a medicale!amination report, a horoscope and a "choolLeaving 2ertificate. As the appellants hadceased to be children, the "upreme 2ourtobserved there is no uestion of sendingthem to an approved school under the &.?.2hildrenEs Act for detention. Accordingly,whilst sustaining the conviction of theappellants under all the charges framedagainst them, we uash the sentencesawarded to them and direct their releaseforthwith.
UMESH SINGH & ANR. VS. STATE O %IHAR "
In this case the contention contention of juvenility juvenility wasnot raised before the /rial /rial 2ourt or the #igh2ourt. #igh2ourt. /he Ape! 2ourt declared the appellant Arvind "ingh a juvenile on the basis of a reportof e!perts which indicated that Arvind was hardly <7 years old old on the date of the incident./his report
of
e!pertswas
supported
by
theschool
certificate
as
well
as
the
matriculationcertificate. /he "upreme 2ourt confirmed theconviction, but setaside the sentence imposedupon him and released Arvind "ingh forthwith. ;1<;; "upp *@- "22 @<;D <;; "22 *2ri- 7;D AI$ AI$ <;;@ "2 <=@.
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U(ENDRA !UMAR VS. STATE O %IHAR $
In this case too the "upreme 2ourt upheldthe conviction and uashed the sentence.$esultantly, the appellant is directed to bereleased forthwith if not reuired in any othercase.
SATY SATYA A MOHAN MOHA N SINGH SIN GH VS. STATE STATE O U.(
/he /rial 2ourt convicted the appellant to lifeimprisonment for having committed anoffence under sections 7=1, 7=> I?2. /hesentence was upheld by the #igh 2ourt. oclaim of juvenility had been raised before the/rial 2ourt, but when the uestion ofawarding sentence was being considered, onbehalf of the appellant, it was pointed out thathe was fifteen years of age in 5ecember <;:=when the judgment was being delivered bythe trial court. /he trial court assessed theage of the appellant in 5ecember <;:=between si!teen to seventeen years. /heoccurrence had taken place in 5ecember<;>;. /herefore, even according to theestimate of the trial court, the age of theappellant on the date of the occurrence wasfifteen or si!teen. /his observation of the trialcourt clearly shows that on the date of theoccurrence, the appellant was a child withinthe meaning of section 1*@- of the Act."tating thus, the Ape! 2ourt declared theappellant a child, i.e., below <8 years ofage, under the &.?. 2hildrenEs Act, upheld theconviction and uashed his sentence.
SAHA%UDDIN ALIAS SHA%OO VS. STATE O U.( '
Apprehending that a juvenileEs incarcerationis detrimental to his wellbeing, the boyjuvenile was released on bail on his fatherEse!ecuting a bond for his sonEs good conduct./-t conduct. /-t shall be futile to sa" that )onstantin)ar)eration of a juvenile is a greater threatto him than his )onstru)tive ;@*1==- 7 "22 ;1D 1== "22 *2ri- >>:.
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release. 6here isever" li$elihood of his )oming into )onta)t of$no8n )riminals than his being released onbail on the father furnishing bond for hisbetter up$eep and for maintaining good behaviour to8ards the so)iet".3 so)iet".3
VIJENDRA !UMAR MALI, ET#. VS. STATEO U.( *
/he #igh 2ourt whilst dealing with the subjectof a subordinate court having refused bail toa juvenile on the ground that the offence wasa serious one, observedD
/6his )ourt in a number of judgments has)ategori)all" held that bail to the juvenile )anonl" be refused if an" one of the groundse=isted. So far as the ground of gravit" is)on)erned* it is not )overed under the aboveprovisions of the A)t. -f the bail appli)ation ofthe juvenile 8as to be )onsid )onsidere ered d under under thepro theprovis vision ionss of the +ode of +rimin +riminal al !ro)e !ro)edur dure*t e*ther heree 8ould 8ould have been absolutel" none)essit" for the ena)tment of the aforesaidA)t. 6he language of se)tion 4 of the A)titself la"s do8n that not8ithstanding an"thing)ontained in the +ode of +riminal !ro)edure* !ro)edure* 4FHE of 4FHJC or in an" other la8 for thetime being in for)e* the juvenile a))used shallbe released.3
!ALYAN #HANDRA SAR!AR VS. RAJESH RANJAN 8
/his judgment deals with the right of anaccused to file a subseuent bail applicationwhen earlier bail application*s- have beenrejected by subordinate or higher court.
/But even persons a))used of non,bailableoffen)es are entitled to bail if the )ourt)on)erned )omes to the )on)lusion that theprose)ution has failed to establish a primafa)ie )ase against him andor if the )ourt issatisfied for reasons to be re)orded that inspite of the e=isten)e of prima fa)ie )asethere is a need to release su)h persons onbail 8here fa)t situations re0uire re0uire it to do so.-n that pro)ess a person 8hose appli)ationfor enlargement on bail is on)e reje)ted isnot pre)luded from filing a subse0uentappli)ation for grant of bail if there is a)hange in the fa)t ;>1==7 2riLJ @8<; *ALLA#A)A5-. *ALLA#A)A5-.
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situation. -n su)h )ases ifthe )ir)umstan)es then prevailing re0uirethat re0uirethat su)h persons be b e released on bail* in spiteof his earlier appli)ations being reje)ted* the)ourts )an do so.3
/he "upreme 2ourt held that subseuent subseuent bailapplication* bailapplication*ss- can be filed /if there is a )hangein the fa)t situation or in la8 8hi)h re0uiresthe earlier vie8 being interfered 8ith or8here the earlier finding has be)omeobsolete.3
SURINDER SINGH VS. STATE O U.(
:. 6he jurisdi)tional issue based onpurported ages of the a))used needs)onsideration first. 6he 0uestion relating tothe age of the a))used 8as never neve r raisedbefore the )ourts belo8* ne)essitating ade)ision in this regard 9>urther* at no pointof time during trial or before the (igh +ourtthis 0uestion 8as raised. >urther* thene)essit" of determining the age of thea))used arises 8hen the a))used raises aplea and the )ourt entertains a doubt. (ere*no )laim 8as made b" the a))used that he8as a )hild and* therefore* therefore* the 0uestion ofthe )ourt entertaining a doubt does notarise9-n the aforesaid ba)$ground* pleabased on purported age raised b" theappellants has no merit and is reje)ted.3
OM (RA!ASH VS. STATE OUTTARAN#HAL --
/he age recorded in the section 7<7 2r?2 statement showed +m ?rakash to be ajuvenile on the date of offence. /he claim ofjuvenility was rejected by the "upreme 2ourtonly on the ground that the appellant hadopened a bank account a few months beforecommission of the offenceD /..theappellant8ould not have been in a position to open thea))ount unless he 8as a major and de)lare de)laredhi dhimse mself lf to be so.3 so.3 /he "upreme "upreme 2ourt 2ourt upheldt upheldthe he death death senten sentence ce awarde awarded d by the /rial2ourt and confirmed by the #igh 2ourt.
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RAM DEO #HAUHAN VS. STATE O ASSAM -
In this case a 7Judge )ench of the "upreme2ourt did not reduce a sentence of deathpenalty to one of life imprisonment, despitedissention from one Judge. /he defense ledevidence before the /rial 2ourt to prove that $am 5eo was a juvenile at the time of theoffence. /he father of the petitioner wase!amined as well as the #eadmaster to provethe school register that showed the petitionerto be below <8 years on the date of offence.An associate professor in forensic medicinewho had e!amined the petitioner forascertaining his age was called as a 2ourtwitness, in the doctorEs opinion $am 5eowould have been between < to <8 years onthe relevant date. /his evidence was not ableto swerve the majority view, they instead paidcredence to the fact that *i- on the basis of $am 5eoEs fatherEs fatherEs crosse!amin crosse!amination, ation, the prosecution prosecution calculated calculated the age of thepetitioner as 18 years on the date ofoccurrenceD *ii- a former employer gaveevidence as a prosecution witness that priorto the incident, the petitioner had h ad told himthat he h e was 1= years ye ars oldD *iii- the petitionerhad described himself as 1= years old whenhis statement was recorded on the date ofoffenceD *iv- the accused was shown as 1years 8 months in his statement recorded bythe /rial 2ourt 8 years after the date ofincident.
/he dissenting judgment gives detailedreasons as to why the prosecutionEscontention cannot be accepted.
/4F. &e are unable to a)t on an" one of thematerials proje)ted b" the prose)ution forthe purpose of rea)hing a )on)lusionregarding the age of the petitioner as on therelevant date. 6he e=er)ise of hat)hing orbre8ing up possible date or "ear of birth 8iththe help of s)attered ans8ers given b" thefather of the petitioner* all during )ross,e=amination*is ver" unsound )ourse to beadopted. At an" rate su)h an e=er)ise )annotbe )an notbe sustained to the detriment of the person)on)erned. 7or )an - rel" on the testimon" of!&,J 8ho said that the a))used told him in4FF4 that his age 8as G. Su)h a statement)annot be regarded as rea)hing an"8herenear the pro=imit" of reliabilit" for fi=ing upthe )orre)t age of a person. p erson. 6he statementre)orded statementre)orded under Se)tion 4<4 of the +ode is notpermitted b" la8 to be use e=)ept for)ontradi)ting the author of the statement.(en)e it is impermissible to loo$ into thatmaterial also. 6he sheet on 8hi)h thestatement of the a))used 8as <=<*1==<- "22 ><@D AI$ 1==< "2 117<.
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re)orded under Se)tion E@ of the +ode )ontains some)olumns in the prefator" portionI one amongthem 8as regarding the age. 6he statementof the a))used a)tuall" starts onl" afterma$ing su)h entries in those prefator")olumns. prefator")olumns. nless the person 8ho filled upsu)h prefator" prefator" )olumns is e=am e=amin ined ed fors forsho ho8i 8ing ng ho8 ho8 he gathe gathere red d the the info inform rmat atio ionr nreg egar ardi ding ng all all su)h su)h )olu )olumn mnss the the entrie entriesth sther erei ein n )annot )annot be regar regarded ded as legal legal eviden) eviden)e.A e.Att an" rate* rate* 8e )annot )annot pro)e pro)eed ed on apresumption that su)h )olumns 8ere filledup b" the a))used himself.3
/he dissenting Judge whilst commuting thedeath sentence to life imprisonment, thoughagreeing that the petitioner did not succeedin proving that that he was aged below <8years on the date of occurrence, went on to sayB
/4.
But - am in)lined to approa)h approa)h the0uestion the0uestion from from a different different angle. +an deathsenten)e be
a8arded to a person 8hose ageis not positivel" established b" the prose)utionas above 4< on the )ru)ial date.-f theprose)ution failed to prove positivel" thataspe)t* )an a )onvi)ted person be allo8ed tobe hanged b" ne)$ till death in vie8 of the)lear interdi)t )ontained in Se)tion 4C ofthe 'uvenile A)t.3
C.A3TE$ ;7 T.E LOGICAL 3$O#LEMS WIT. T.E J(%ENILE J(STICE J(STI CE ACT IN INDIA IN DIA /he brutal 5elhi gang rape case has bought forth a new aspect of criminality that IndiaEs justice system needs to address urgently. +ne of the accused, as per police record and, according to reports, the most aggressive of the lot who brutaliGed the young girl, is a minor of <> years. $eports have shown that it was the minor who first lured the unsuspecting victims into the bus and that he was the most aggressive in the repeated rape of the victim. In India the sentencing and trial of juvenile offenders is mandated and governed by the Juvenile Justice Act 1===. S&)"$'n 14 mandates that all cases involving detention, prosecution, penalty and sentence of
imprisonmen imprisonmentt involving involving juveniles shall be governed governed by the Juvenile Justice Act. Act. S&)"$'n 2* defines a juvenile as any child who has not yet completed eighteen years of age. S&)"$'n 151 , 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, ma!imum and thereafter be released on probation. 4hat this boils down to is the fact that in case the accused happens to be a juvenile the ma!imum time that he shall serve is three years or <=; days in a special rehabilitation home. )efore venturing into the merits and demerits of the Indian Juvenile Justice system it would be prudent to see how the 4estern world deals with juveniles accused of horrendous crimes. A somewhat similar, yet if possible more horrific situation arose in 'ngland in the now infamous 'ames infamous 'ames Bulger +ase in +ase in <;;7. /he two accused and convicted of torturing and murdering a two year old child were both <= years old at the time of the offence. /hey were tried as adults and convicted for life with a minimum sentence of eight years. ?olice personnel look on as a vehicle, which is believed to be carrying the accused in a gangrape and murder case, arrives at an entr entran ance ce to "ake "akett 5ist 5istri rict ct 2our 2ourtt in ew ew 5elh 5elhi. i. AF? AF? in 'ngl 'nglan and, d, the the age age of crim crimin inal al responsibility, responsibility, is set at <= years. /his means that any an y individual above the age of <= is considered con sidered fully aware of the difference between right and wrong. In case of a juvenile offender, heCshe 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 2rown 2ourt *the &3 version of a criminal court- has in its discretion to award the ma!imum amount of punishment as would be awarded to an adult. "imilarly in the &nited "tates the case of Kent of Kent v 6he nited +ase in +ase in <;88 saw a juvenile, who was convicted of house breaking robbery and rape, tried as a major. #e was sentenced to thirty to ninety years behind bars. In fact, the &nites "tates 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. /he legislation of the country allows in certain cases, keeping in mind the heinousness of the crime committed, to try juvenile offenders as adults. /he justification offered behind this waiver is to recogniGe the inherent and all important principle of o f ens $ea or guilty consci conscienc ence. e. /his /his waiver waiver of jurisd jurisdict iction ion by the Juvenile Juvenile )oard )oard is brough broughtt about about by a clear clear understanding that in certain cases the board may not be adeuately euipped to handle the offender, particularly one who committed the crime knowing fully well the conseuences of hisCher actions. Another justification offered is the prime responsibility of the "tate to protect society from such offenders. )y waiving its jurisdiction the juvenile court recogniGes that the offender is beyond the scope of juvenile rehabilitation and legitimiGes the waiver of jurisdiction as a means of protecting society at large from the offender.
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Australia too follows a system similar to the &nited 3ingdom. /he age for criminal responsibility in Australia is also <= years, which means a child is not supposed to know the difference between right and wrong if heCshe is below <= years. From <= years to <@ years an accused comes under what is called Krebuttable presumptionE, this means that by default the child is supposed to be unaware of the conseuences and inherent illegality of the act committed, however the prosecution is free to rebut this understanding. Any individual over <@ 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. 2oming back to India and the Juvenile Justice Act 1===, it is easy to notice that rather than have a fle!ible procedure for sentencing we have opted for a rigid and sweeping one. /his is a system in which the ma!imum amount of sentence served by a delinuent who say partakes in armed robbery in order to feed himself is the same as the one given out to a serial rapist or murdererD just so long both are under eighteen years of age. /he 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 KJuvenile in conflict with the lawE. 4hile the swanky name change is an earnest and somewhat romantic gesture at our societiesE endeavor in recogniGing and unleashing the KgoodE within each child, there is an inherent problem with the term of the sent sentenc ence. e. /her /heree is no logi logical cal or scie scient ntif ific ic reas reason on whic which h show showss that that tota totall and compl complet etee rehabilita rehabilitation tion can be achieved by a delinuentC offenderC offenderC child in conflict conflict with the law within within a ma!imum period of three years. In the case of the 5elhi rapist, even if one were to say that the boy needs to be rehabilita rehabilitated ted and that perhaps the reason for his barbaric barbaric and animalisti animalisticc act was a deeprooted psychological problem, there is no assurance that the issue can be dealt with in three years. +f course, the absolute lack of implementation of the provisions of the JJ Act after a juvenile completes his sentence is another concern. IndiaEs massive population makes it impossible to track track and ensure ensure that that a juveni juvenile le once released released contin continues ues with with his therapy therapy or even even report reportss regularly to his parole officer. 4ith this basic and undeniable truth it is a matter of simple calculation that in all probability the 5elhi rapist shall be on the streets within the ne!t three
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years thatEs <=; days with nothing more than a stint in a special home in the name of absolute and complete $ehabilitation.<=1
C.A3TE$ < 7NEED TO AMEND T.E J(%ENILE J(%EN ILE J(STI J(STICE CE LA L AW IN INDIA7 3OST T.E DEL.I GANG $A3E CASE /he brutal role played by the juvenile accused in the recent horrifying gangrape of young irbhaya coupled with the prospect of his being left free in about four monthsE time, has caused utter dismay, concern and outrage amongst the citiGenry. It has led to demands for drastic amendments in e!isting Juvenile Laws providing blanket immunity to juveniles below the age of eighteen years from any punishment irrespective of the c ircumstances and nature of the crime. /he 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. any such crimes are repeat offences where the accused were letoff after being put in 2orrection #omes without any an y punishment under und er the immunity clause. #ence # ence 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 $ule <1 of the concerned $ules has been demanded, enforcing manda mandato tory ry accep accepta tanc ncee of age age cert certif ific icat atee of a give given n desc descri ript ptio ion n by the the Juve Juveni nile le Just Justic icee )oardC2ourt without any further verification of its authenticity. #owever, 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 for amending such Laws. /hey also plead that sharing of the same barracks with hardened criminals may make juveniles hardened criminals themselves. Further, it is argued that many <=1httpBCCwww <=1httpBCCwww.firstpo .firstpost.comCindiaC st.comCindiaCthelogicalproble thelogicalproblemswithjuveni mswithjuvenilejusticein lejusticeinindia india..
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juveniles are not criminals by nature, but are often victims of their social and political environment, poverty and poor education. /he 2entral government itself appears to be divided on this issue. 4hile &nion inister for 4omen and 2hild 5evelopment, "mt. 3rishna /irath, has categorically ruled out any need for amendment. /he &nion #ome inistry has, based on consensus arrived at a recent meeting with state 56?s, recommended lowering of the age bar for Juvenile to si!teen years. +bviously this e!amination is to be undertaken in the conte!t of the very purpose of juvenile enactment together with the larger objective of prevention of crime in the "ociety. /he 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 conseuences of his actions. In law, a juvenile is considered not old enough to be held responsible for his criminal acts. +nce recogniGed a Juvenile, the law concedes immunity to him from the conseuences of his action which are in conflict with law. In India, the uestion whether a particular juvenile accused of committing the crime has actually attained sufficient maturity of understanding to judge of the nature and conseuences of his conduct, has not been left to the determination by the 2ourt. Instead, "ection 1 *1- 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 2riminal 2ourt or any punishment under 2riminal Law in view of section <> of the Juvenile Act. #owever, these provisions are in direct conflict with "ection :1 and :7 of the Indian ?enal 2ode, which bestows such immunity till the age of seven years only. As to the offences committed by a childCperson within the age group of seven to twelve years, "ection :7 of the 2ode in effect divi divides des them them into into two two cate catego gori ries esDD a chil child, d, who who has has not not atta attaine ined d suff suffic icie ient nt matu maturi rity ty of understanding to judge of the nature and conseuences of his conduct would get a complete immu immuni nity ty,, whil whilee the the one, one, who who is foun found d to have have atta attain ined ed suff suffic icie ient nt ment mental al matur maturit ity y of understanding the nature and conseuences of his action would not be entitled to any such protection.
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/he original Act introduced in 1=== put the age bar at si!teen years, which was enhanced to eighteen years in the year 1==8 only. #owever, the global trend on this score has been just the reverse. In view of their own past e!perience, most countries are now reducing the age bar for granting immunity to Juvenile, especially against heinous crimes. A 6et /ough movement is sweeping the &nited "tates 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 fi!ed at seventeen years, while in three states, it has been settled at fifteen years. oreover all "tates in &.". have now introduced provisions allowing prosecutors to try juveniles as young as fourteen as adults under certain circumstances. In some "tates in &."., such as Indiana, "outh 5akota, and 9ermont, children as young as ten can now be tried as adults. /he "upreme 2ourt in the case of "tanford 9ersus 3entucky upheld the constitutionality of death penalty for heinous crimes committed at the age of si!teen years. "eventeen out of fifty states of the &nited "tate permit e!ecution of juvenile of si!teen years old for murder as an adult. In fact,the fact,the general tendency of "tate and Federal Federal amendments in juvenile juvenile acts has been to transfer greate greaterr number number of juveni juveniles les to crimin criminal al courts courts for prosec prosecuti ution on and punish punishmen mentt as adults. adults. Interestingly, the overall rate of juvenile crime has been decreasing since these changes have been effected in the year <;;. +f late, many states have also introduced Kblended sentencingE, that is a mi! of both juvenile and adult sanctions to the same person, representing adoption of a middle ground between the juvenile and adult system. "imilarly in France, no criminal charge can be brought against a child up to the age of ten yearsD and for child between ten to thirteen years of age, only educational penalties such as placing in a specialiGed 2entre or home are to be given, while between thirteen to si!teen years of age, minors will get only half of the adult sentence. Lastly, between si!teen to eighteen years of age, person would be remanded to 2riminal 2ourt and plea of juvenility can be set aside. In &.3. and 4ales, those below ten years cannot be charged with crime, between the age of ten to eighteen, juveniles are to be tried in 0outh 2ourts without jury, and as to serious crimes like murder or rape, their the ir case starts in 0outh 0outh 2ourts but is passed on to adult 2ourts.
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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 %ueensland, it is si!teen years only. +ur own e!perience of last twelve years has been no different. 4hile pleading for the maintenance of status uo 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 conseuences of his action, but still commits the same intentionally and in cold blood because of his criminal bent of mind. "uch hardened juvenile mostly belong to the age group of si!teen to eighteen years. "econdly, one of the basic object of granting befitting punishment is to create a deterrent effect, both upon wrongdoer as well as on others members of "ociety. ere 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 also argued argued by reform reformist istss that that our correc correctio tion n homes homes do not have proper correcti correctional onal facilities. )ut this argument can cut both sides. Further, the 4estern e!perience, where superior instit instituti utional onal and correc correctio tional nal facili facilitie tiess e!ist, e!ist, is no better better.. 4e should should,, theref therefore ore,, amend 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 conseuences of his action at that time. /hus, the new law may provide for initial reference and retention of every accused Juvenile Juvenile to the care of Juvenile )oard until it is satisfied satisfied *after *after obtaining e!pert opinion which should be mandatory- that the accused juvenile did possess sufficient maturity of understanding to judge of nature and conseuences of his conduct on that occasion, hence deserving to be referred to 2riminal 2ourt for trail of his offence. 4here the finding is to the contrary, the
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juvenile in uestion may be retained under the care of Juvenile Justice )oard. /he decision of the Juvenile Justice )oard should be open to judicial review at the level of the #igh 2ourt. A further provision may be made in the ActC$ules that a Juvenile in conflict with law, who has been found liable to be referred to 2riminal 2ourt for trial in the above manner, would be retained in protection home until the court finally adjudicates him to be guilty and awards senten sentence. ce. 'ven after after award award of senten sentence, ce, specia speciall wards wards can be create created d in jails jails for keepin keeping g juveniles in order to avoid their cohabitation with hardened criminals. Alternatively, Alternatively, the law may provide for some reduced punishment, pun ishment, as is prevalent in France. "imilarly, given e!isting levels of illiteracy and inefficiencies in administration, the authenticity and accuracy of birth certificates, even municipal certificates is often uestionable. /herefore it would be reasonable to reduce the upper age limit for treating a person as juvenile to si!teen years as before. $ule 1= of the Juvenile $ules 1==> should also be modified to provide that in cases where the accused person claims to be within the threshold age *if the age bar is eighteen, then between si!teen to eighteen years- the court can verify accuracy of such certificates by referring the accused to medical e!amination b y a duly constituted edical )oard.
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C.A3TE$ =7 The Juvenile Justice >Ca,e ? 3,otection 3,otection o Chil+,en@ #ill 0B&4 A juvenile juvenile or child is a person less than <: years of age. &nder "ection :1 of the Indian ?enal 2ode *I?2-, the minimum age at which any person can be charged for a crime is seven years. /he Juvenile Justice *2are and ?rotection of 2hildren- Act, 1=== addresses children who are in conflict with law and children in need of care and protection.1 /he Act was brought in to adhere to the &nited ations 2onvention on the $ights of the 2hild *&2$2- which was ratified by India in <;;1. As a signatory, India is reuired to undertake all appropriate measures to ensure the rights of children with regard to juvenile justice, care and protection, adoption, etc. As per 1=<< census data, juveniles between the ages of seven to <: years constitute about 1H of the total population.7 According to the ational 2rime $ecords )ureau *2$)-, the percentage of juvenile crimes as a proportion of total crimes has increased from
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was introduced in Lok"abha on August <1, 1=<@ to address crimes committed by juveniles, children in need of protection, their rehabilitation and adoption processes, etc
='& Ke* "eatu,es /he )ill seeks to replace the Juvenile Justice *2are and ?rotection of 2hildren- Act, 1===.
Chil+,en in Conict ith La •
Juvenile Juvenile Justice Justice )oards *JJ)s- will be constitute constituted d in each district district to deal with children in conflict with law. /hey will consist of a etropolitan or Judicial agistrate and two social workers, including a woman. +ffences committed by juveniles are categoriGed asB *i- heinous offences *those with minimum punishment of seven years of imprisonment under I?2 or any other law-, *iiserious 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. penalty. &nder the )ill, a juvenile in conflict with law can be reuired to spend a ma!imum of three years in a special home or fit facility. #owever, juveniles in the age group of <8<: years may be tried as adults in certain cases. Any person who is between the ages of <8<: years and has committed a heinous offence may be tried as an adult, irrespective of date of apprehension. Also, a juvenile between <8<: years of age who has committed a serious offence and apprehended after the age of 1< years, may be tried as an adult. In all other cases, juveniles will get a ma!imum of three years in institutional care, as determined by the JJ). In case of heinous offences, if a juvenile is apprehended before 1< years of age the JJ) will conduct a preliminary inuiry. /his will determine his mentalCphysical capacity to commit an offence and an understanding of its conseuences. /he JJ) will then pass an order that recommendsB *i- interventions like counseling or community serviceD *ii- staying at an observation home for a temporary or longterm periodD or *iii- refer the juvenile to a 2hildrenEs 2ourt to determine whether to try him as an adult. 2hildrenEs 2ourt is a "essions 2ourt notified under the 2ommissions for ?rotection of A2hild $ights Act, 1==. For the purposes of this )ill, once a juvenile is referred by a JJ) :7
to a 2hildrenEs 2ourt it will determine whether to try him as an adult or else recommend counseling, stay at observation home, etc.
='0 Chil+,en in Nee+ o Ca,e an+ 3,otection 2hild 2hild 4elfare lfare 2ommit 2ommittee teess *242s*242s- will be constit constituted uted in each each distri district ct to deal deal with with children in need of careand protection. /hey will be composed of a chairperson and four other members who shall be e!perts on matters relating to children.At least one of the four members will be a woman. /able $ape 1;7 <,7:: 3idnappingCabduction <8 ;77 $obbery <8 ::= urder 71: :@ +ther offences <<,:7; <;,8@< /otal <7,;@< 1,:=@ oteB +ther offences include cheating, rioting, etc. "ourceB Juveniles in conflict with law, 2rime in India 1=<7, ational 2rime $ecords )ureau. /he Juvenile Justice *2are and ?rotection •
of 2hildren- )ill, 1=<@ ?$" Legislative $esearch April 1=, 1=< 7 O A child who is found to be in need of care and protection shall be brought before a 242 within 1@ hours"ubseuently, a "ocial Investigation $eport is reuired to be prepared within < days. After assessing the report, the 242 may recommend that the child be sent to a childrenEs home or another facility for long term or temporary care, or declare the child as free for adoption or foster care.
='2 Oences an+ 3enalties •
/he offence of assaulting, abandoning, abusing, or willfully neglecting a child will attract a punishment of up to three years of imprisonment andCor a fine of one lakh rupees. /he penalty for employing a child for the purpose of begging will lead to an imprisonment of
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up to five years and a fine of one lakh rupees. A person who gives a child an into!icating or narcotic substance will be liable for imprisonment up to seven years and a fine e!tending up to one lakh rupees. /he penalty
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for selling or buying a child for any purpose will be imprisonment up to five years and a fine of one lakh rupees.
='5 Othe, 3,ovisions A+' A+'"$ "$'n 'n B /he 2entral Adoption $esource Agency will frame regulations on adoption.
/hese regulations will be implemented by state and district agencies. ?rospective adoptive parents should be physically ph ysically and financially sound. A single or divorced person may adopt a child. A single male may not adopt a girl child. /he )ill also provides for intercountry adoption. R&,$!"r#"$'n R&,$!"r#"$'n ' $n!"$""$'n! $n!"$""$'n! B Institutions for child care having a valid registration under the the 1=== 1=== Act will will cont contin inue ue to be reco recogn gniG iGed. ed. +the +therr inst instit itut utio ions ns are are reu reuir ired ed to be registered within si! months of this )ill coming into force. /he registration is valid for five years and needs to be renewed. Inspection committees will inspect these institutions and registration may be cancelled if they do not meet the prescribed criteria.
='6 Ke* issues an+ anal*sis 16-18 (&#r '*+! #))!&+ ' )&r"#$n '&n)&! 3#( & "r$&+ #! #+*"! /he )ill states that <8<: year old juvenile offenders may be tried as adults in certain cases. /here are differing views on whether juveniles should be tried as adults. $ecently, the "upreme 2ourt while hearing a case related to juvenile crime observed that the 1=== Act needs to be reviewed due to increasing heinous offences by juveniles. /he law needs to deter juveniles from committing heinous crimes and safeguard the rights of victims. For crimes like rape and murder it is hard to conceive that the juvenile is not aware of the conseuences. 8 #owever, the "tanding 2ommittee e!amining the proposed )ill observed that <8<: years is a sensitive and critical age reuiring greater protection. > +ther e!perts have argued that a criminal justice system that has a reformative and rehabilitative approach towards juvenile offenders may reduce cases of repeat offences. /hey say that under the current law, juvenile crime has only shown a marginal increase over the past few years. N'n)'3*$#n)& ;$"% "%& UNCRC $n "r&#"3&n" ' 16-18 (&#r #,& ,r'
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/he )ill reuires certain juveniles between the ages of <8<: years to be tried as adults with regard to specific offences. /his provision is not in accordance with the &2$2, as ratified by India, India, and mentioned mentioned in the )illEs "tatement "tatement of +bjects +bjects and $easons. /he "tanding "tanding 2ommittee 2ommittee observed that the )ill violates the &2$2 as it differentiates between children below <: years of age. /he &2$2 states that signatory countries should treat every child under the age of <: years in the same manner and not try them as adults. It recommends that those countries that treat or propose to treat <8<: year olds as adult criminals, change their laws to align with the principle of nondiscrimination towards children. /he 1=== Act was enacted to implement the &2$2 guidelines in the Indian conte!t. &nlike the )ill, the 1=== Act complies with the &2$2 &2$2 guidel guidelines ines and does not disti distingui nguish sh betwee between n person personss below below the age of <: years. years. #owever, many other countries try juveniles as adults, in case of certain crimes. All of these countries, e!cept the &nited "tates, have ratified the &2$2. In the Anne!ure on the last page, we compare criminal laws in these countries with regard to treating juvenile offenders as adults
='; Juvenile a//,ehen+e+ ate, 0& *ea,s o age o, se,iousFheinous oences P'!!$*& $'*#"$'n ' Ar"$)*&! 14< 21 #n+ 201 ' "%& C'n!"$""$'n
2lause > of the )ill states that any person who is between the ages of <8<: years and has committed a serious *between three to seven years imprisonment- or heinous offence *minimum seven years imprisonment-, will be )illB 2lause <8*<- &2$2B 6eneral 2omment <= ActB "ection <*f- /he Juvenile Justice *2are and ?rotection of 2hildren- )ill, 1=<@ ?$" Legislative $esearch April 1=, 1=< @ tried as an adult if he is apprehended after the age of 1< years *subject to other provisions of the )ill-. /his provision could violate some Fundamental $ights guaranteed by the 2onstitution. Ar"$)*& 14 states that every person shall be treated eually before law. It has been interpreted that
uneual treatment may be permitted between different sets of people only if there is a clear public purpose sought to be achieved by such uneual treatment. /he )ill creates a distinction 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 :8
individuals, committing the same offence, on the basis of date of apprehension. /able 1 below demonstrates the implications of this provision.
Ar"$)*& 21 states states that no person can be deprived deprived of their right right to life or personal liberty, liberty, e!cept e!cept
according to procedure established by law. 2ourts have interpreted this to say that any law or procedure established should be fair and reasonable.; /he differentiation based on the date of apprehension may fail this standard. In 1==, a 2onstitution )ench of the "upreme 2ourt, while determining the age of a juvenile and the resulting penalty *under the 1=== Act and an earlier <;:8 Act- decided that the date on which the offence is committed matters, and not the date of apprehe apprehensi nsion. on.<= <= /he provis provision ion of the )ill )ill mentio mentioned ned above above contra contradic dicts ts this this ruling ruling of the 2onstitution )ench, and considers the date of apprehension when deciding the penalty given to a juvenile. Article 1=*<- of the 2onstitution states that a person cannot be subjected to a penalty great greater er than than what what woul would d have have been been appli applica cabl blee to him, him, unde underr a law law in forc forcee at the the time time ofcommission of the offence. &nder the )ill, if a juvenile between the ages of <8<: years commits an offence and is apprehended at a later date, he may face a higher penalty than what would be applicable to him if he had been apprehended at the time of commission of the offence. /his provision does not directly contradict Article 1=*<- as provisions of the )ill do not apply retrospectively. #owever, if the spirit of Article 1=*<- is that a person should not get a penalty higher than what would be applicable at the time of commission of the offence, then this objective is not being met by the bill.
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#iliog,a/h* SUNIL = BHATTACHAR> BHATTACHAR>A A ,JUVENILE JUSTICE IN INDAIN SCENARIO
A%3#+ S$++$?&< Criminology Prol!ms " P!rs#!$%i&! 5"% &+.< 2007 N.V. P#r#n@#&< CRIMINOLO'( P#r#n@#&< CRIMINOLO'( AND PENOLO'( 1"% 1"% &+.< 2008 S. S. Sr Sr$ $#! #!"# "## #<< Crimin Criminolo ology gy and Crimin Criminal al Admin Adminis% is%ra% ra%ion ion r+ r+ &+. &+.<< 2007 J.P.S. J.P.S. S$r'%$< CRIMINOLO'( AND PENOLO'( 6"% &+.< 2007 DELI)UENC( AND JUSTICE, JUSTICE, RONALD J. BURER , JUVENILE DELI)UENC( CONSTITUTION O INDIA
= R =EL=AR< CODE O* CRIMINAL PROCEDURE
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