FACULTY OF LAW

JAMIA MILLIA ISLAMIA

NEW DELHI

PROJECT TITLE

JUVENILE IN CONFLICT WITH LAW: INQUIRY AND TRIAL

SUBJECT

CODE OF CRIMINAL PROCEDURE, 1973

Submitted By:
SUMAIYA KHAN
B.A. L.L.B(H) [IX SEM]
SECTION A
CLASS ROLL NO. 32

Submitted to:
DR. ASAD MALIK
PROF.
FACULTY OF LAW
JAMIA MILLIA ISLAMIA

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 ACKNOWLEDGEMENT

It is my imperative duty to thank the following people for the successful completion

of my CrPC project that is JUVENILE IN CONFLICT WITH LAW: INQUIRY AND TRIAL:

1. Dr Asad Malik for the clarity he brings into teaching thus enabling us to have a better
understanding of his subject. I also feel obliged to thank him for providing us with such
wonderful topics to choose from.

2. The very cooperative and friendly staff members in the Law Library who were instrumental
in our finding the necessary books without wasting much time.

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TABLE OF CONTENT
S

1.INTRODUCTION..................................................................................................1

2.BACKGROUND....................................................................................................2

3. AN OVERVIEW OF JUVENILE JUSTICE ACT, 2015: INQUIRY AND TRIAL

PROCEDURE........................................................................................................11

4. SHORTCOMINGS OF THE NEW J.J.ACT...........................................................21

5. CONCLUSION..................................................................................................23

6. BIBLIOGRAPHY................................................................................................24
1.INTRODUCTION
Change is the natural phenomenon and this phenomenon applies in every sphere of life so the
law cannot be an exception to this. In the same way, the laws relating to child, having its
seeds right from the enactment of the Constitution of India in the form of fundamental rights
under Article 15(3) read with Directive principles of State Policy under Article 39(e) & (f)
along with fundamental duties under Article 51A, was the need of society. The laws relating
to the child was also expedient to be enacted due to accession by the Government of India to
the Convention on the Rights of the Child, 1992, the standards set in UN rules for
administration of justice, 1985, UN rules for protection of juveniles deprived of their liberty,
1990 and Hague Convention on Adoption, 1993. And, therefore, the law was enacted in the
year 1986 in the form of Juvenile Justice Act and the same was, as per the above said natural
phenomenon of changes, changed time to time accordingly, i.e., Juvenile Justice (Care and
Protection) Act, 2000 and Juvenile Justice Act, 2015.

The present Act came into existence on 15 January, 2016 after a nationwide agitation and
much hue and cry over the limitation of age of the child in cases of heinous crime which was
the result of Nirbhaya incident and its aftermath developments.
The present Act places its reliance on following principles which have also been enumerated
in the Act itself- Principle of presumption of innocence, principle of dignity and worth,
principle of participation, principle of family responsibility, principle of safety and positive
measures, principle of equality and non-discrimination, principle of privacy and
confidentiality.
The J.J Act, 2015 provides provisions for both children in need of care and protection and
children in conflict with law. This assignment paper mainly focuses on the provisions related
to Juvenile in conflict with law.

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2.BACKGROUND
The Apprentices Act, 1850 was the first of its kind punishing delinquent children under the
age of 15 involved in petty offences as apprentices. Subsequently, the Reformatory Schools
Act, 1897 provided that children up to the age of 15, sentenced to imprisonment may be sent
to reformatory schools rather than prison. The Madras Act started the era of diversion of all
children from the criminal justice system by establishment of separate juvenile courts and
residential institutions in 1920 which was then followed by many other States. The Children
Acts passed around this time had certain common features though they laid down different
cut-off ages for defining children. All of them included provision for establishment of a
separate children’s court to deal with cases of children covered by the requisite Children Act.
These Acts also made provisions for separate residential institutions to house children during
pendency of their proceedings or after disposal of their cases by the children’s courts,
directing them to be sent to an institution. Use of prison was permitted in exceptional
circumstances under these legislations.

The Parliament enacted the first central legislation, namely the Children Act, 1960 as the
model law. Henceforth, all the states followed the same pattern while enacting their
respective legislations. The central Act was applicable only to the Union Territories. The
education minister, who moved the Children Bill in 1959, stated that the subject-matter
constituting juvenile justice was listed in the State List of the Indian Constitution. The
Children Act, 1960 introduced a sex-discriminatory definition of child and established two
separate adjudicatory bodies to deal with children in conflict with law and children in need of
care. It prohibited imposition of death penalty or sentence of imprisonment or use of jails or
police station for keeping children under any circumstance. It did not recognise the right to
appoint a lawyer in the proceedings before the children’s court. A similar position in the
Saurashtra Children Act was declared to be unconstitutional by the Gujarat High Court in
1969.The Children Act, 1960 was amended in 1978 to permit lawyers to appear before the
Child Welfare Board.

In 1986, the Parliament passed the Juvenile Justice Act (hereinafter, the 1986 Act or the JJ
Act, 1986 or the Act of 1986) applicable to the whole of India. There was no discussion
during the parliamentary debates on the competence of the Parliament to enact such
legislation. The Act was enforced throughout the territory of India (except the state of Jammu

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and Kashmir) on 2ndOctober, 1987, bringing a uniform juvenile justice law throughout the
country. While it retained the scheme and primary features of the Children’s Act, 1960, the
Act of 1986 substituted the word ‘juvenile’ for ‘child’. It continued the same sex-
discriminatory definition of child, though. It provided two separate authorities to deal with
the two categories of delinquent and negligent children. The new provisions provided for
establishment of Advisory Boards, creation of a Children’s Fund and appointment of visitors
for each institution.

However, all this went in vain and the Parliament finally enacted The Juvenile Justice (Care
and Protection of Children) Act, 2000. The Parliament found it expedient to re-enact the
existing law relating to juveniles bearing in mind the standards prescribed in the CRC, the
United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985
(hereinafter, the Beijing Rules), the United Nations Rules for the Protection of Juveniles
deprived of their Liberty, 1990 (hereinafter, the 1990 Rules), and all other relevant
instruments. The Act of 2000 was amended in 2006 and new Model Rules, 2007 were
notified in October 26, 2007.

2.1. The Juvenile Justice (Care and Protection of Children) Act, 2000 And the Changes
Brought About by It

The Act of 2000 was a sincere effort made by the Indian legislature to inculcate the principles
of the United Nations Conventions like the CRC, the Beijing Rules and the 1990 Rules.
According to the Supreme Court of India, the JJ Act, 2000 is enacted to deal with offences
committed by juveniles in a manner which was meant to be different from the law applicable
to adults. The very scheme of the Act is rehabilitation in nature and not adversarial which the
Courts are generally used to. Its implementation thus required a complete change in the
mindset of those who are vested with authority of enforcing the same without which it will be
almost impossible to achieve its goals.

Applicability of the Act: The Honourable Supreme Court in Jameel v. State of Maharashtra
ruled that so far as contention of the appellant is concerned regarding applicability of the JJ
Act, 2000, it is not in dispute that the appellant on the date of occurrence had completed 16
years of age. The offence of unnatural intercourse having been committed on 16thDecember,
1989, the JJ Act, 2000 had no application. In terms of the Juvenile Justice Act, 1986, Juvenile

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was a boy who had not attained the age of 16 years or a girl who had not attained the age of
18 years. Hence, the plea that the JJ Act, 2000 would apply as accused had not attained the
age of 18 on the date of occurrence of the event, is not tenable since on the date of
enforcement of the JJ Act, 2000 accused was above 18. Notably, accused had completed 16
years on the date of incident, therefore, the JJ Act, 2000 is categorically not applicable.

Non-applicability of any other Act for the time being in force: The Supreme Court in Raj
Singh v. State of Haryana held that legislations dealing with juveniles shall reign supreme in
cases dealing with juveniles irrespective of the nature of offence committed.

When the plea of juvenility can be raised: The plea of juvenility can be raised at any stage,
even after the person has been sentenced by the trial court.

Juvenile Justice Board: The State Government is empowered to set up a Juvenile Justice
Board (hereinafter, the JJB) for a district or a group of districts. Section 4 of the JJ Act, 2000
deals with the setup and constitution of the Board. Section 5(2) provides that a child who has
committed offence may be produced before an individual member of the Board in case the
Board is not presiding. Section 6(1) gives the Board exclusive powers to deal with all
proceedings under the 2000 Act relating to juvenile in conflict with law.

Juveniles in conflict with law: Observation homes are to be established in each district or
group of districts for temporary reception of such juveniles during pendency of enquiry.
Special homes are to be established in each district or group of districts for reception and
rehabilitation of such juveniles which implies that orders have already been passed by a JJB
in such cases. The juveniles shall be classified based on age, considering physical/mental
health and nature of offence.

Process: No juvenile for any reason can be lodged in police lock-up or in jail. On receipt of a
report under section 32, the Committee or any police officer or special juvenile police unit or
the designated police officer shall hold an inquiry in the prescribed manner and the
Committee, on its own or on the report from any person or any agency as mentioned in
section 32(1), may pass an order to send the child to the children’s home for speedy inquiry
by a social worker or child welfare officer. The inquiry under this section shall be completed
within four months of the receipt of the order or within such shorter period as may be fixed

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by the Committee. Provided that the time for the submission of such enquiry report may be
extended by such period as the Committee may, having regard to the circumstances and for
reasons recorded in writing, determine. After the completion of such inquiry, if the
Committee is of the view that the said child has no family or ostensible support, it may allow
the child to remain in the children’s home or shelter home till suitable rehabilitation is found
for him or till he attains the age of 18.

Children’s home: The State government may establish and maintain either by itself or in
association with a voluntary organisation/organisations, children’s homes, in every district or
group of districts, as the case may be, for the reception of child in need of care and protection
during the pendency of any inquiry and subsequently for their care, treatment, education,
training, development and rehabilitation. The State Government may, by rules made under
this Act, provide for the management of children’s homes including the standards and the
nature of services to be provided by them, and the circumstances under which, and the
manner in which, the certification of a children’s home or recognition to a voluntary
organisation may be granted or withdrawn.

Inspection: The State government may appoint inspection committees for the children’s
homes for the State, a district and city, as the case may be, for such period and for such
purposes as may be prescribed. The inspection committee of a State, district or of a city shall
consist of such number of representatives from the State government, local authority,
Committee, voluntary organisation and other medical experts and social experts as may be
prescribed. The Central and State governments may monitor and evaluate the functioning of
the children’s homes at such period and through such persons and institutions as may be
specified by that government.

2.2 Juvenile Justice (Care and Protection of Children) Act, 2006 and 2010: Section 21 of
the Act of 2000 as amended by the 2006 Act states:
21. Prohibition of publication of name, etc., of juvenile or child in need of care and protection
involved in any proceeding under the Act.-(1)No report in any newspaper, magazine, news-
sheet or visual media of any inquiry regarding a juvenile in conflict with law or a child in
need of care and protection under this Act shall disclose the name, address or school or any
other particulars calculated to lead to the identification of the juvenile or child nor shall any
picture of any such juvenile or child be published: Provided that for reasons to be recorded in

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 writing, the authority holding the inquiry may permit such disclosure, if in its opinion such
disclosure is in the interest of the juvenile or the child.

(2)Any person who contravenes the provisions of sub-section (1), shall be liable to a penalty
which may extend to twenty five thousand rupees.

The Apex court in 2009 in Hari Ram v. State of Rajasthan confirmed the retrospective effect
of the Act of 2000, which was earlier confirmed by some High courts in India, particularly by
the Bombay High Court. Pursuant to an order of the Delhi High Court, the Act was further
amended in 2011whereby certain provisions which were discriminatory to the persons
affected by leprosy have been deleted.

2.3 The Juvenile Justice (Care and Protection of Children) Bill, 2014
(i) The Women and Child Development Ministry introduced the Juvenile Justice (Care and
Protection of Children) Bill, 2014 in Lok Sabha on August 12th, 2014. This Bill sought to
make more robust, effective and responsive the legislative framework for children in need of
care and protection as well as children in conflict with law. Its provisions responded to the
perceptions, articulated by the society for the need to have an effective system of
administration of justice, care and protection of juveniles.

The Bill proposed a legislation which replaced the Act of 2000. It clearly defined and
classified offences as petty, serious and heinous, and defined different processes for each
category. Considering the growing number of serious offences being committed by persons
between the age of 16-18 and recognising rights of victims as equally important as those of
juveniles, special provisions were proposed to tackle heinous offences committed by
individuals in the above-stated age group.

The Bill proposed that in case a heinous crime is committed by persons between 16-18 years
of age it will be examined by the JJB to asses if the crime was committed as a ‘child’ or as an
‘adult’. Since this assessment will be made by the JJB which will have both psychological as
well as social experts, it will ensure that the rights of the juvenile are duly protected if he has
committed the crime as a child. The trial of the case will take place accordingly as a juvenile
or an adult on the basis of this assessment. As per the Women and Child Development
Ministry, this unique instrument of a two-stage trial brings a balance that is sensitive to the

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rights of the child, protective of his legitimate interests and yet conscious of the need to deter
crimes, especially brutal crimes against women. The proposed amendment further reinforces
these principles through introduction of a new provision that disallows the protection from
disqualification in cases where a juvenile is tried and convicted under the adult system.
The new law proposed to streamline adoption procedures for the orphaned, abandoned and
surrendered children. It establishes a statutory status for the Child Adoption Resources
Authority (hereinafter, CARA). The law further proposed several rehabilitation and social
integration measures for institutional and non-institutional children. It also provided for
mandatory registration of all institutions providing child care. New offences including
unlawful adoption, corporal punishment in child-care institutes, use of children by militants
and offences against disabled children have been incorporated.

The Bill was referred to the Parliament Standing Committee. In their report dated
25thFebruary, 2015, the Committee made several recommendations to strengthen the Bill.
Most of such recommendations have been accepted. Accordingly, the Women and Child
Development Ministry proposed to undertake Amendment to the said Bill on the basis of the
recommendations of the Committee.

The major amendments include:

1.Removal of clause 7 that relates to trials of individuals above the age of 21 as an adult for
committing any serious or heinous offence when the person is in the age group of 16-18;
2.Enhancing the period of preliminary inquiry by the JJB in case of heinous crimes
committed by children (16-18 years);
3.Increasing the reconsideration period for surrender of children by parents or guardians;
4.Enhancing period for inter-country adoption in case the child is not given for domestic
adoption;
5.Assigning role of designated authority to monitor implementation of the Bill to the National
Commission for Protection of Child Rights; and
6.Making Central and State Governments responsible for spreading awareness on the
provisions of the Bill.

2.4 The Juvenile Justice (Care and Protection of Children) Act, 2015
The key purpose to bring a new legislation was the increased number of crimes (particularly
rapes), by juveniles (16-18 years). However, several questions were raised on the new law, as

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 being more retributive than reformative. Retributive because it contains provisions for
teenagers who commits heinous crime (with punishment of 7 years or more) shall be tried
like adults but in the children’s court. The Children’s Court shall make sure that the child
found guilty of heinous crime shall be sent to a place of safety till he/she attains the age of 21
and afterwards, the person shall be shifted to jail. This means that on being found guilty of
committing a heinous crime, he/she shall not get benefit of being a child.

The new Juvenile law was also criticised by many protestors as being unconstitutional. In
Pratap Singh v. State of Jharkhand, it was observed by the Court that in Rule 4 of the United
Nations Standard Minimum Rules for the administration of Juvenile Justice, while holding a
juvenile responsible for a crime, the moral and psychological components must be given
importance. According to Prof. Ved Kumari, if a juvenile of the age of 16 commits a heinous
crime and his or her offence is punishable with 7 year imprisonment, then he/she need to be
produced before the JJB,who will adjudge on the physical and mental capacity of the child;
whether that juvenile has committed such offence has the ability to understand consequence
of the offence and in what circumstances the offence has been committed. This work of the
JJB is challenging and there is a huge chance of uncertainty.

Another issue raised by many activists is that the 2015 Act violates the spirit of
Article20(1),where a person cannot be subjected to greater punishment that what would have
been applicable to him under the law of the land. Under the new Act, if a juvenile sentenced
under the law who has completed 21 years of age but has not completed the full period of his
sentence may be sent to jail if it is considered appropriate. This new law undermines the spirit
of Article 20(1).

2.4.1 Salient Features of the JJ Act, 2015:

1. Definition of ‘child in need of care and protection’ expanded- The definition as per the new
Act now also includes a child who is found working in contravention of labour laws, at
imminent risk of marriage before attaining the lawful age for the same or who resides with
such a person who has or had threatened to injure, exploit, abuse or neglect the child or
violate any other law or whose parents or guardians are unfit to take care of him.
2. CWC is no longer the final authority in cases of children in need of care and protection- The
District Magistrate (hereinafter, the DM) shall be the grievance redressal authority for the

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 CWC and anybody connected with the child may file a petition before the DM, who shall
consider and pass appropriate orders.
3. Procedure for inquiry- The CWC shall now conduct an inquiry of any child produced before
it, as opposed to children for whom production reports are received. Procedure now includes
orphaned and surrendered children as well.
4. Extensive definition of ‘adoption’ provided- an extensive definition of adoption has now been
provided and child’s rights have been recognised.
5. The Act treats all children below 18 years equally except those in the age group of 16-18, can
be tried as adults.
6. Child of 16-18 years who commits lesser offence(serious) may be tried as adult if he is
apprehended after the age of 21 years.
7. Heinous offence attracts minimum 7 years of imprisonment. Serious offence attracts
minimum 3-7 years of imprisonment. Petty offence attracts less than 3 years of
imprisonment.
8. No child can be awarded Death Penalty or Life Imprisonment.
9. Juvenile Justice Board must be there in each district.
10. Children Court is special court set up under the Commission of Protection of Child Rights
Act, 2005 or Special Court under the POCSO Act, 2012. In absence of such court, it can be
tried in Session Court.
11. Provisions for Appeal, Rehabilitation, Special Juvenile Police Unit, Bail, Child Welfare
Officer, Observation home, Children’s Home, Open shelter etc. are provided under the Act.
12. General principles to be followed for the administration of the Act are provided under Section
3 as follows:

(I) Principle of presumption of innocence

(ii) Principle of dignity and worth

(iii) Principle of participation

(iv) Principle of best interest

(v) Principle of family responsibility

(vi) Principle of safety

(vii) Positive measures

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(viii) Principle of non-stigmatising semantics

(ix) Principle of non-waiver of rights

(x) Principle of equality and non-discrimination

(xi) Principle of right to privacy and confidentiality

(xii) Principle of institutionalisation as a measure of last resort

(xiii) Principle of repatriation and restoration

(xiv) Principle of fresh start

(xv) Principle of diversion

(xvi) Principles of natural justice

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 3. AN OVERVIEW OF JUVENILE JUSTICE ACT, 2015:
INQUIRY AND TRIAL PROCEDURE
3.1 Who is Child or Juvenile?

A “child”1 or “Juvenile”2 means a person who has not attained 18 years of age and a “child in
conflict with law”3 means a child who is alleged or found to have committed an offence and
who has not completed 18 years of age on the date of commission of such offence. From the
very beginning, all the juvenile Acts were framed in accordance with the international
standards laid down in various conventions and followed the principle of ‘once a juvenile,
always a juvenile’. This principle has been adopted in Section 5 and 6 of the Act, 2015.
According to these provisions, if on the date of the offence, a person was a child then he shall
be treated like a child during the course of inquiry, even if he became a major on his date of
apprehension. Similarly, when a person on his apprehension was a child but attains the age of
majority during the course of inquiry, he will also be governed by the provisions of J.J. Act.

3.2 Determination of Age of Child or Juvenile:

Earlier, there was no provision in procedure for determination of age of a Juvenile was given
in rule-12 of J.J Rules, 2007. The new J.J. Act, 2015 now adapted the same rule with a minor
change. Section 94 of the J.J. Act, 2015 says that where, it is obvious to the Committee or the
Board, based on the appearance of the person brought before it, that the said person is a child,
the Committee or the Board shall record such observation stating the age of the child as
nearly as may be and proceed with the inquiry as the case may be, without waiting for further
confirmation of the age.4 In case, the Committee or the Board, shall undertake the process of
age determination, by seeking evidence by obtaining-

(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from
the concerned examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) and only in the absence of those documents, age shall be determined by an ossification test or
any other latest medical age determination test conducted on the orders of the Committee or
the Board.5

1
Section 2(12) of the Act.
2
Section 2(35) of the Act.
3
Section 2(13) of the Act.
4
Section 94(1) of the Act.
5
Section 94(2) of the Act.

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 Unlike the rule-12, this new provision neither requires a certificate from the first attended
school nor prohibit a certificate from a play school. Thus, a birth certificate from any school
is sufficient to determine the true age of a child. However, there is no settled criteria behind
the entry of age in these certificates. It has been found that age of a person in one certificate is
different from another certificate. Therefore, a complete reliance on these certificates without
any check may lead to misuse of these provisions.

J.J. Act, 2015 also prescribes that age determination test shall be completed within 15 days
from the date of such order.6 The age recorded by the Committee or the Board, shall, for the
purpose of this Act, be deemed by the true age of that person. It is pertinent to mention that
Supreme Court has held that age of a victim shall also be determined according to the rule-12
of Juvenile Justice(Care and Protection of Children) Rules, 2007.7 The law laid down by
Apex court is still applicable even after coming into effect of this new J.J, Act, 2015 because
in substance, the provision for determination of age of a child is still the same as contained in
Rule-12.

3.3 Categories of Offences and Procedure of Inquiry-

In the old Act of 2000, there was no category of offences. The latest Act clearly defines three
types of offence committed by the children.

(i) Petty Offences8- “petty offences” includes the offences for which the maximum punishment
under the Indian Penal Code or any other law for the time being in force is imprisonment up
to 3 years.
(ii) Serious Offences9- “serious offences” includes the offences for which the punishment under
the Indian Penal Code or any other law for the time being in force, is imprisonment between
three to seven years.
(iii) Heinous offences10- “heinous offences” includes the offence for which the minimum
punishment under the Indian Penal Code or any other law for the time being in force is
imprisonment for seven years or more.

Earlier a reference was there in rule-11(7) and 11(9) of Juvenile Justice (Care and Protection
of Children) Rules, 2007 regarding serious and non-serious crimes. Serious offences were

6
Proviso to Section 94(2) of the Act.
7
Jarnail Singh v. State of Haryana, (2013) 7 SCC 263.
8
Section 2(45) of the Act.
9
Section 2(54) of the Act.
10
Section 2(33) of the Act.

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those entailing punishment of less than seven years of imprisonment. The rule-13(2) of J.J,
Rules, 2007 provided that petty offences shall be tried in summary manner and in serious
crime, procedure of trial in summon cases shall be followed. But there was no provision for
trial in non-serious crimes. The rules were not clear enough to prescribe the proper and detail
procedure to deal with different categories of offences committed by a juvenile. A clear
mandate has been given in the new Act regarding the procedure of inquiry in different
categories of offences. Accordingly, cases of petty offences, shall be disposed of by the
Board through summary proceedings;11 inquiry of serious offences committed by a child
below the age of 18 years and inquiry of heinous offence committed by the child below the
age of 16 years shall be disposed of by the Board, by following the procedure, for trial in
summons cases under the Code of Criminal Procedure, 1973.12

Under the new Act of 2015, special provisions have been made to tackle child offenders
committing heinous offences in the age group of 16-18 years. The Juvenile Justice Board is
given the option to transfer cases of heinous offences by such Children’s Court after
conducting preliminary assessment. Board shall conduct a preliminary assessment with
regard to his mental and physical capacity to commit such offence, ability to understand the
consequence of the offence and the circumstances in which he allegedly committed the
offence.13 If Board is satisfied on preliminary assessment that the matters should be disposed
of by the Board, it shall follow the procedure of trial in summons cases.14 Where after
conducting such inquiry the Board pass an order that there is a need for trail of the said child
as an adult, then it will transfer the case to Children’s Court.15

The Act, 2015 again maintain the old policy of Act, 2000, that proceeding under Chapter VIII
of the Code of Criminal Procedure for offences against maintaining peace and good
behaviour, shall not apply against children.16

3.4 Categories of Children for the purpose of Inquiry:

In the repealed Act of 2000, no category was made among the children for the purpose of
inquiry. In the Act of 2015, children are divided in two categories. The first category relates
to the child below the age of 16 years on the date of commission of the offence. Second

11
Section 14(5)(d) of the Act.
12
Section 14(5)(e) & 14(5)(f)(i) of the Act.
13
Section 15(1) of the Act.
14
Section 15(2) of the Act.
15
Section 18(3) of the Act.
16
Section 22 of the Act.

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category relates to the child who has completed the age of 16 years or above the age of 16
years and who has committed a heinous offence. Irrespective of the offence committed by a
child below the age of 16 years, the inquiry authority is always a Board. A child of 16 or
above, who has committed a heinous crime shall be inquired by the Board or by Children
Court on reference of Board.

3.5 Apprehension of Juvenile:

As soon as a child is apprehended by police, he shall be placed under the charge of Special
Juvenile Police Unit or designated Police Officer, who shall produce the child before the JJB
within 24 hrs.17 Soon after the apprehension he has a duty to inform the guardian or parent of
the child.18 The child shall not be kept in jail or lock-up.19 He shall be kept in place of safety
like Observation Home or in the custody of fit person or institution.20 These provisions are
same as contained in the old repealed Act of 2000.

3.5 Bail of a Child:

Section 12 and the principles regarding bail of juvenile is also same as were given in old
repealed Act of 2000. When any person, who is apparently a child and is alleged to have
committed a bailable or non-bailable offence, is apprehended or detained by the police or
appears or brought before a Board, such person shall be released on bail with or without
surety or placed under the supervision of a Probation officer or under the care of any fit
person but such person shall not be so released if there appears reasonable grounds for
believing that the release is likely to bring that person into association with any known
criminal or expose the said person to moral, physical, or psychological danger or the person’s
release would defeat the ends of justice, and the board shall record the reasons for denying
the bail and circumstances that led to such a decision.21 When a child is released on bail, the
Probation Officer or Child Welfare Officer shall be informed by the Board.22 If unable to
fulfil the conditions of bail, he shall be produced before Board for modification of conditions
of bail.23

3.6 Production of Child before a Magistrate not empowered under JJ Act, 2015:

17
Section 10(1) of the Act.
18
Section 13(1)(i) of the Act.
19
Proviso to Section 10(1) of the Act.
20
Section 9(4) of the Act.
21
Section 12(1) proviso to the Act.
22
Section 13(2) of the Act.
23
Section 12(4) of the Act.

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Again, no deviation is made from the old Act of 2000. New Act also provides that when a
person is brought before a Magistrate, and he is of opinion that the person produced before
him is a child, he shall without any delay, record an opinion, and forward the child
immediately along with the record of such proceedings to the Board having such
jurisdiction.24 Here, the Magistrate need not to hold a detail inquiry regarding the age of a
child. Where a person apparently appears as a child, Magistrate may forward the child to the
Board on the same obvious reason, but when there is a person who may be between 16-19,
his opinion must be based on some substantive material.

3.7 Claim of Juvenile before a Court:

In case a person claims juvenility before a court, or if the court itself is of the opinion that the
person was a child on the date of commission of the offence, the said court shall make an
inquiry, take such evidence as may be necessary (but not an affidavit) to determine the age of
such person, and shall record a finding on the matter, starting the age of the person as nearly
as may be.25 Such a claim may be raised before any court and it shall be recognised at any
stage, even after final disposal of the case, and such a claim shall be determined in
accordance with the provisions contained in this Act and the rules made thereunder even if
the person has ceased to be a child on or before the date of commencement of this Act.26
Thus, the court is also bound to determine the age of a person and that he has committed an
offence and was a child on the date of commission of such offence, it shall forward the child
to the Board for passing appropriate orders and the sentence, if any, passed by the court shall
be deemed to have no effect.27 Here again, no change is made regarding claim of juvenility
before a court. New Act emphasises that the court cannot determine the age casually or in
cavalier manner. Unlike the Magistrate, a court is bound to record a finding as to the age of
the person.

3.7 Juvenile Justice Board28

It is the duty of State to constitute in every district, a Juvenile Justice Board (JJB) to deal with
the matters of child in conflict with law. It consists of a Principle Magistrate and two Social
workers of whom one shall be a woman. In appointing a Principle Magistrate, it shall be kept
in mind that a Judicial Magistrate and two Social Workers of whom one appointed as
24
Section 9(1) of the Act.
25
Section 9(2) of the Act.
26
Proviso to Section 9(2) of the Act.
27
Section 9(3) of the Act.
28
Section 4 of the Act.

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Principal Magistrate.29 The logic behind this provision is perhaps the supervisory power f
CJM. CJM has been given supervisory functions over the Board.

The object behind constituting a Board is same as contained in old Act that the matters of
children should not be dealt by regular courts. The purpose is to keep the children away from
the atmosphere of regular courts which may adversely affect the psychology of a child. A
joint proceeding of an adult accused and a child is also not permitted.30 Board shall not
conduct a trial but an enquiry of the offence committed by a child and the same shall be
completed within four months unless it is extended for a further maximum period of two
months for reasons to be recorded.31 If inquiry of a petty offence remains inconclusive even
after the maximum period, the proceeding shall be terminated.32 However, inquiry of serious
and heinous offences shall not be terminated and inquiry period shall be further extended by
CJM if Board requires.33

3.8 Orders that may be passed by the Board-

Irrespective of the age of a child in petty offences, serious offences and heinous crime
committed by a child below 16 years, if Board finds that child has committed an offence, then
the board may pass an order to go home after advice or admonition,34 or group counselling35
or community service36. Board may order the child or parent of the child to pay fine.37

A child may be released on probation and placed under the care of guardian or fit person or
fit facility but he shall be kept only for three years.38 Board may also direct the child to be
sent to special home having reformative services, for such period not exceeding three years.39
In addition, it may also order to attend school; or attend a vocational training; or attend a
therapeutic centre; or undergo a de-addiction programme.40 Where a Board is satisfied on
inquiry that the child brought before it has not committed any offence, then the Board shall
pass order to that effect.41

29
Section 4(2) of the Act.
30
Section 23 of the Act.
31
Section 14(2) of the Act.
32
Section 14(4) of the Act.
33
Proviso to Section 14(4) of the Act.
34
Section 18(1)(a)
35
Section 18(1)(b)
36
Section 18(1)(c)
37
Section 18(1)(d)
38
Section 18(1)(e) &(f)
39
Section 18(1)(g)
40
Section 18(2)
41
Section 17(1)

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In case of heinous crime committed by children between 16-I8 years Board shall complete a
preliminary assessment within a period of three months from the date of first production.42
After preliminary assessment Board may either itself conduct the trial or it may transfer the
trial of the case to Children Court.43 If Board pass an order that there is no need for trial of the
child as an adult., it shall follow the procedure of summon trial.

3.9 Children Court-

Unlike the repealed Act, the present Act introduces altogether a new concept of Children
Court. The Children Court means a court established under the Commissions for Protection
of Child Right Act, 2005 or a Special Court under the Protection of Children from Sexual
Offences Act, 2012. wherever existing and where such courts have not been designated, the
Court of Sessions having jurisdiction to try offences under the Act.44 Children Court hear the
matter of children between 16-18 years who have committed heinous offences. But it has no
original jurisdiction. It can exercise the jurisdiction only on transfer of the case by Board.
Children Court is also empowered to hear the appeal against the orders of Board.45

3.10 Orders that may be passed by Children Court-

After the receipt of preliminary assessment from the Board, the Children's Court may
decide that there is a need for trial of the child as an adult.46 When Court decide to try the
child as an adult, it may pass appropriate orders after the trial considering the special needs of
the child.47 A wide discretion has been given to the Children Court in passing any order
against a child tried as an adult, However, there is a limitation on the discretion of Children
Court that no child in conflict with law shall be sentenced to death or for life imprisonment
without the possibility of release for any such offence, either under the provisions of this Act
or under the provisions of the Indian Penal Code or any other being in force.48 While
conducting the trial of a child as an adult, the child shall not be tried with a person who is not
a child. The provision provide for placing children in a ‘place of safety’ both during and after
the trial till they attain the age of 21 years and thereafter, the person shall be transferred to a

42
Section 14(3)
43
Section 18(3)
44
Section 2(20)
45
Section 101
46
Section 19
47
Section 19(1)(i)
48
Section 21

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jail.49 After attaining the age of 21 years, a child shall be evaluated by the Children Court.50
On the evaluation, the child may be released on probation but if the child is not reformed then
the child will be sent to a jail for remaining term.51

If Court decides that there is no need for trial of the chid as an adult, then it may conduct an
inquiry as a Board and pass same appropriate orders i.e., advice, admonition, probation, fine
etc. that may be passed by the Board.52

These provisions are aimed to focus on rehabilitation and reformation of a child in conflict
with law but the lack of proper infrastructure and supporting system has always frustrated the
purpose. Whenever a child is apprehended, the big issue is keeping the child in place of
safety because in many districts, still there is no home or place of safety. The home or
institutions lack rehabilitative services, training programmes and basic facilities.
Implementation of orders of probation or community service is still not practicable due to
lack of effective machinery.

3.11 Punishment for non-payment of fine or security-

In the old Act of 2000, no child could be punished for non-payment of fine or security53 but in
the new Act of 2015 there is no prohibition clause. Hence, for recovery of fine or in default of
giving security, the provisions of code of criminal procedure will be applicable. However,
where a child is not earning or have no means to pay the fine or security, any proceeding
against the child will not serve the purpose.

3.12 No Punishment for runaway children-

If a child runs away from the custody of parent or guardian or fit person or fit institution, any
police officer may take charge of that child.54 Such child shall be produced before the Board
which passed the original order or the nearest board where the child is found.55 The Board
shall ascertain the reasons for the child having runaway and pass appropriate orders for the
child to be sent back either to the institution or person from whose custody the child had run
49
Section 19(3)
50
Section 20(1)
51
Section 20(2)
52
Section 19(1)(ii)
53
Section 16(1) of JJ Act, 2000.
54
Section 26(1)
55
Section 26(2)

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away or any other similar place or person, as the Board may think fit.56 No additional
proceeding shall be instituted in respect of such child.57

3.13 Removal of disqualification-

A child who has committed an offence has been dealt with under the provisions of this Act
shall not suffer disqualification, if any, attached to a conviction of an offence under such
law.58 This benefit has not been extended to a child who is 16 years or above and is found to
be in conflict with law by the Children's Court and also tried by the court as an adult.59

3.14 Reports to be Confidential-

All the reports related to the child and considered by the Board or Children Court shall be
treated as confidential.60 Board or Children Court shall direct the destruction of relevant
records after the expiry of period of appeal.61 However, Children Court shall retain the
records in matters of heinous crimes committed by children who were tried as an adult.62

3.15 Appeal-63

An appeal against order passed by the Board shall lie to the Children's Court.64 But there is an
exception to this general rule that where an order is passed by Board after making the
preliminary assessment into a heinous offence under section 15 of the Act, an appeal shall lie
before the Court of Sessions. No second appeal shall lie from any order of the Court of
Session, passed in appeal under this section.65

No appeal shall lie from any order of acquittal made by the Board in respect of a child alleged
to have committed a petty offence, serious offence and heinous offence committed by a child
below 16 years but an appeal shall lie against the acquittal order of Board in case of heinous
offence committed by a child who is between 16-18 years.66

In case of orders of the Children Court, the appellate authority is High Court.67

56
Section 26(3)
57
Section 26(4)
58
Section 24(1)
59
Proviso to Section 24(1)
60
Section 99
61
Section 24(2)
62
Section 24(2) proviso.
63
Section 101
64
Section 101(1)
65
Section 101(4)
66
Section 101(3)(a)
67
Section 101(5)

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 4. SHORTCOMINGS OF THE NEW J.J.ACT
4.1 Treatment of child as an adult- A Vague Criteria- In the new Act, the children
between the age of 16-18 years committed heinous offence, has been categorised as a child:

(i) who cannot be treated as an adult and,

(ii) who should be tried as an adult.
The criteria while deciding the adulthood of a child is a preliminary assessment with regard
to his mental and physical capacity to commit such offence, ability to understand the
consequences of the offence and the circumstances in which he allegedly committed the
offence. Even after the preliminary assessment and referral order of Board, the Children
court is again bound to determine the adulthood of the referred child. The Board or the
Children Court may for this purpose take the assistance of experienced psychologists or
psycho-social workers or other experts. Therefore, availability, of experienced psychologist
or psycho-social workers is a question mark before the practicability of this provision. Even
if, there is any such availability, an opinion about the adulthood of a child is still a subjective
opinion. If an order is challenged regarding the preliminary assessment of a child, the
appellate body is bound to take assistance of another expert and in this process again the
opinion may be different. This yardstick is neither practicable nor objective.

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4.2 No clear provision with regard to the orders to be passed by Board after enquiry in
heinous crimes committed by children between 16-18 years- Board is empowered to pass
any of those orders such as advice, admonition, probation, fine, community service, etc. as
prescribed in section 18 against the child who has committed either a petty offence, or a
serious offence, or a heinous offence being under the age of 16 years. But there is no
provision in the Act as to what orders the Board shall pass after enquiry in heinous offence
which has been done by a child between 16-18 years. On this point, the Act is silent and
needs to be clarified. The power is given to central government to remove any difficulty.

The new Act provides that in cases of children between 16-18 years, who has committed
heinous crimes, if the Children Court decides that the child should not be tried as an adult, it
may pass the orders of advice, admonition, probation, fine etc. as prescribed in Section 18.
An inference can be drawn from this sentencing power of Children court and would be safe to
say that Board may also pass the same orders of advice, admonition, etc., in matters of
heinous offence committed by children between 16-18 years.

4.3 Lack of clarity on Appellate Powers - According to Section 101(1), except an order of
preliminary assessment under section 15, all order passed by Board may be challenged before
the Children Court. But the proviso to this subsection says that in case of any delay in filling
appeal, delay can be condoned only by a session court. It is a general principle of criminal
law that an appellate court is empowered not only to hear the appeal but also empowered to
condone the delay. But in the new Act of 2015, this power has been divided between the
Session Court and Children Court. According to this provision, it seems that if there is a
delay in filing the appeal, appellant has to approach Session Court. If Session Court condones
the delay then again appellant has to approach Children Court for filling the appeal. It would
have been better to confer both the powers on Children Court only. The object behind this
provision is not clear. Either it is the deliberate intention of legislature or a clerical mistake
which led to the use of term 'Court of Session' instead of 'Children Court'.

21 | P a g e
5. CONCLUSION
The new Act has drawn a new line differentiating other children from those who are of 16
years or more and has committed a heinous offence. Procedure for their enquiry also appears
to be perfect in black and white unless tested for some period in practice.Point to be focused
is the age limit of 16-18 years in heinous offence. Why the age of child is minimised to l6
years and not to either 17 or 15 or 14or 13 etc? The basic parameter to shorten the age to 16
vears or more, is explained nowhere either in its preamble or in the body of the Act. Once the
State (India) took courage to withdraw from the minimum age provided for child in all
International Legal Documents (i.e. 18 years) then it should have minimised it to less than 16
years. And for this sake, had it been fixed to 14 years it would have got its legal sanctity from
the Constitution of India and other prevalent laws.

Constitution of India, being The Groundwork initially takes care of children up to 14 years
which further gets from section 58-83 of IPC where noting is an offence which is done by a
child under the age of 12 years. Secondly, the priority of methods fixed for determination of
age of a child needs to be considered much more because in a country like our reliance on
certificate (mentioned in the Act) may, sometimes, defeat the ends of justice. In the blooming
era of science and technology, ossification, though having margin of (+/-) 2 years, appears to
be more reliable being a scientific one. Thirdly, so far the procedures invented and adopted in
the new Act for enquiry/trial of a child (being of the age of 16 years or more) involved in a
heinous crime is concerned it would be very early to predict about its merit or demerits unless

22 | P a g e
the same is being tested on floor for a considerable period.

Thus, to conclude, I am of the view that in spite of pros and cons mentioned in above going
paragraphs, the new Act is a step forward and a leap ahead to bring the matured offenders
(having mens rea) under the scrutiny of full-fledged legal process (for common offenders)
eliminating the chances of misuse of a law (relating to child) which is very pious in its
intention and is also an attempt to strike a balance between offenders in general and the best
interests of children.

6. BIBLIOGRAPHY

Statute:

 The Code of Criminal Procedure, 1973

 Juvenile Justice (Care and Protection of Children) Act, 2015

Articles/ Websites:
 http://www.legalservicesindia.com/article/2482/The-Juvenile-Justice-Care-and-
Protection-of-Children-Act,-2000-and-The-Juvenile-Justice-Care-and-Protection-of-
Children-Act,-2015.html
 https://www.livelaw.in
 https://barandbench.com
 http://www.gkforallexams.in
 https://www.latestlaws.com/latest-news/
 https://www.legalbites.in/
 https://www.satyarthi.org.in/assets/pdf/FAQ%27s%20on%20JJB.pdf
 http://cara.nic.in/PDF/JJ%20act%202015.pdf
 http://ujala.uk.gov.in/files/Article_5BOOK_UJALA.pdf
 https://www.advocatekhoj.com/library/bareacts/juvenilelaw2016/14.php?Title=Juvenile
%20Justice%20(Care%20and%20Protection%20of%20Children)%20Act,

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%202015&STitle=Inquiry%20by%20Board%20regarding%20child%20in%20conflict%20with
%20law

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