139

CHAPTER–7

JUDICIAL TRENDS ON JUVENILE DELINQUENCY

7.1 Introduction

By this chapter an attempt is made to highlight the role of the Supreme

Court and different High Courts in emergence of Juvenile Justice System in

India. When any juvenile is arrested then initially the case of the juvenile

delinquent is tried by the Juvenile Justice Board or Lower Court but their

judgments are being not binding on other courts. So the tendency of the

judicial approach reflected in the judgments of Hon'ble Supreme Court and

High Courts towards a juvenile delinquent are being studied here. The

Children Acts, Juvenile Justice Act, 1986 and Juvenile Justice (Care and

Protection of Children) Act, 2000 show their main concern with the

juvenile justice system in India but many times judiciary has expressed its

serious concern relating to proper implementation of provisions of law for

the beneficiary of children.

7.2 Judicial Trends

Judicial trends relating to juvenile delinquency are being set by various

courts which can be assessed under following ways:-

1. Age of juvenile.

2. Jurisdiction.

3. Apprehension and production

4. Right to Bail.

5. Disposition.

140

7.2.1 Determination of Age of Juvenile

It is the responsibility and duty of the court to determine the age of a person

who is being involved or committed a crime, whether he is juvenile or not.

The court held that “very young children should not be sent to prison”1.

A juvenile under JJ Act, 1986 means “a boy who has not completed the age

of sixteen years and a girl who has not completed age of eighteen years”. In

Juvenile Justice (Care & Protection) Act 2000, the difference of age of

male and female child has been removed and a uniform age pattern was

provided i.e 18 year of age for both. Further, Juvenile Justice (Care &

Protection) Act 2015, defined “child” and “juvenile” under sections 2(12)

and (35) of the Act respectively, define as “a person who has not completed

the age of eighteen years”. And as per section 2(13) of the Act 2015 “child

in conflict with law” means “a juvenile who is alleged or found to have

committed an offence and has not completed eighteen years of age as on

the date of commission of offence”. So it is the responsibility of the court

that before sentencing a person, it is important to determine the age of such

person with the help of relevant documents and then decide whether he/she

is a juvenile or not. Enquiry should be held to verify the related documents

pertaining to age of a juvenile after he/she produced before the court/board

and during the pendency of his case. However, now the Juvenile Justice

(Care & Protection of Children) Act, 2015 has now finally solved the

controversy by referring the child to “a person who has not completed the

age of eighteen years as on date of commission of offence”. However, this

issue of relevant time at which the child should be below the age of

eighteen years has been raised in many judgments but has always been a

debatable issue that is likely to continue in future too.2

1Emperor v. DharamParkash AIR 1926 (Lahore) 611 AIR 1921 (Oudh) 190.

2ArnitDass v. State of Bihar, AIR 2000 (SC) 2264, UmeshChander Vs. State of Rajasthan,

1982 Cri.L.J.994

141

The protective attitude provided by the special legal provision relating to

children has been restated by our judicial system on various occasions.

Delinquent children enjoyed special protection under certain laws like “The

Apprentices Act, 1850, Indian Penal Code, 1860, The Reformatory Schools

Act, 1897, The Code of Criminal Procedure 1973. For example section 82

of IPC, a child below 7 years is not liable for any criminal liability and

section 83 of Indian Penal Code extends this exemption to children between

7 and 12 years of age if proved to be doli- incapax. The question under the

IPC is limited to mens-rea and the age of the child”.

In Emperor vs. WaliMohd.& another3 the Court held that “throwing of

stone at a train by children of 5 and 8 years would ordinarily be protected

under Section 82 and 83 of the Indian Penal Code and would not be

punishable as offence”. The Supreme Court in the year 1977, held “that the

penalty of death should not be imposed on a person below the age of

eighteen”.4

In Ashwani Kumar Saxena vs. State of M.P5, “Ashwani Kumar Saxena and

two others persons, namely, Jitender and Ashish were charge sheeted by the

police for the offences punishable under Section 302 of the IPC r/w Section 27

of Arms Act and Section 302 IPC r/w Section 34 of the IPC, respectively, for

an offence committed by them on 19.10.2008 at 12.30 am in front of Krishna

Restaurant, Chhatarpur which resulted in the death of one Harbal Yadav for

which Sessions Case No.28/09 was pending before the First Additional

Sessions Judge, Chhatarpur, Madhya Pradesh (M.P.). On 11.11.2008 the

appellant filed an application before CJM Court, Chhatarpur u/s 6 and 7 of the

J.J. Act claiming that he was a juvenile on the date of the incident and hence,

3 AIR 1936 (Sind) 185

4Raisul v State of UP, AIR 1977 (SC) 1822.

5 [Criminal Appeal No. 1403 of 2012 Special Leave Petition (CRL) No. 7271 of 2011]

142

the criminal court had no jurisdiction to try this case and the case be referred

to JJ Board and be released on bail.”

The C.J.M. court thought of conducting a bone test for determination of the

age of the appellant. Dr. R.P. Gupta, PW-2 conducted age identification of the

body of the appellant by X ray and opined epiphysis of wrist, elbow, knee and

iliac crest was fused and he was of the opinion that the appellant was more

than 20 years of age on 14.11.2008 and a report exhibited as P-5 was

submitted to that extent. Dr. S.K. Sharma, Medical Officer, District Hospital,

Chhatarpur was examined as PW-3, who conducted teeth test on the appellant

for age identification. PW-3 had found that all 32 teeth were there including

all wisdom teeth, so the age of the appellant was taken as more than 21 years.

Om Prakash vs. State of Rajasthan6, Thus the questions inter alia which

require consideration in this appeal are, whether the respondent/accused herein

who is alleged to have committed an offence of rape under Section 376 IPC

and other allied sections along with a co-accused who already stands

convicted for the offence under Section 376 IPC, can be allowed to avail the

benefit of protection to a juvenile in order to refer him for trial to a juvenile

court under the Juvenile Justice (Care and Protection of Children) Act, 2000

although the trial court and the High Court could not record a conclusive

finding of fact that the respondent/accused was below the age of 18 years on

the date of the incident?

In Umesh Chandra vs. State of Rajasthan7 a full bench of the Apex Court,

too, held that the date of commission of offence as the relevant date for

applying the Children Act. It observed:

“As regards the general applicability of the Act, we are clearly

of the view that the relevant date for the applicability of the Act

6 (2012) 5 SCC 201

7l982 Cri LJ 994.

143

is the date on which the offence takes place. Children Act was

enacted to protect young children from the consequences of

their criminal acts on the footing that their mind at that stage

could not be said to be mature for imputing mens-rea as in the

case of an adult. This being the intendment of the Act, a clear

finding recorded that the relevant date for applicability of the

Act is the date on which the offence takes place. It is quite

possible that by the time the case comes up for trial, growing in

age being an involuntary factor, the child may have ceased to be

a child. Therefore, Sec.3 and 26 become necessary. Both the

sections clearly point in the direction of the relevant date for the

applicability of the Act as the date of occurrence. We are clearly

of the view that the relevant date for the applicability of the Act

so far as the age of the accused who claims to be a child, is

concerned, is the date of the occurrence and not the date of the

trial”.8

The controversy, however, did not end with the above decision of the apex

Court. This question always to be raised under the JJA, and at least two

High Courts held that “the age at the date of trial to be important of its

applicability”.9 These cases were decided in clear ignorance of the apex

Court decision mentioned above in Arnit Das vs. State of Bihar10

where in

bench of apex court held that “the first date of appearance was the relevant

date for applying the Act”. The bench reasoned that the use of the word „is‟

at two places read in conjunction with “a person brought before it.” Section

32 of the JJA clearly indicated for determination of age when the accused

was presented before the court. The decision was subjected to severe

8 However, this ruling of the court seems more an obiter than the dicta as it is not clear from

the facts of the case whether this point was an issue in the case. 9 V. Luxminarayana, 1992 Cri LJ 334(AP)(Overruled in BandellaAlliah 1995 Cri LJ 1085

(AP) (FB); SheoMangal Singh (1990 Cri LJ 1698) (Luck). 10

AIR 2000 (SC) 2264.

144

criticism.11

In Malda Dada vs. State of Gujarat12

, Gujarat H.C held that the

word „attained‟ used in the J.J. Act of 1986 means completed the prescribed

age in the Act. Therefore, a boy who has not completed the age of sixteen

years and a girl who has not completed the age of eighteen years is a

juvenile according to the The JJ Act, 1986. In Gopinath Ghosh vs. State of

West Bengal13

The Apex Court allowed “the plea of child status to be

raised for the first time before it on earlier14

as well as later

occasions”.15

However this approach of apex court has not been followed

continuously by the apex Court itself.

In Hariom vs. State of UP the apex Court again summarily dismissed the

plea of being a child as no evidence was placed during trial or before the

High Court, without making any mention of its own cases holding that it

was too late to produce a certificate before apex Court.

The question arise before the Apex Court in Arnit Das16

was whether a

person is juvenile or not and crucial date is the date when he is brought

before the competent authority or court and not the date of commission of

offence. After considering all the evidence and material facts in this regard,

the court held that as far as the present context is concerned the crucial date

for determining the question whether a person is Juvenile, is the date when

he is brought before the competent authority or court. So far as the ruling

regarding the age of the appellant is concerned, it is based on the evidence

arrived at after taking into consideration of the material facts on record and

valid reasons having been assigned for it.

11

VedKumari, ln Defence of Arnit Das vs State of Bihar: A Rejoinder' (2002) 2 SCC (Jour) 12

Malda Dada vs. State of Gujarat, I.L.R. (1972) Gujarat 326. 13

GopinathGhosh vs. State of West Bengal , 1984 Cri. L.J. 168 (SC 14

Dharampal and others vs. State of U.P.,AIR 1975 (SC), 1917. 15

Umesh Singh vs. State of Bihar, 2000 (4) SCALE 511, Hawaldar Singh v. State of U.P., AIR

1985 (SC) 955. 16

Arnit Das vs. State of BiharAIR 2000, S C 2264 A

145

In Shantanu Mitra vs. State of West Bengal17

the facts of the case are

Shantanu Mitra was arrested and tried u/s 302 IPC. In the court he raised

the plea that he had not attained the age on the date of commission of the

offence i.e. 22-2-98 and was entitled to get protection under JJ Act, 1986.

The appeal was allowed by Apex Court holding that “once an entry is made

by an official, the same cannot be doubted on mere argument that it was not

confirmed with date of the suggested date of birth of appellant”. In case of

Krishan Bhagwan18

a question arose as to what procedure should be

followed where a child within the meaning of the Children Act is being

tried and convicted by the regular criminal court and plea regarding bar of

his trial by the regular court was taken for the first time at the appellate

stage”. The Bench made reference to the decision of case of Gopinath

Ghoshand, the court treated the appellant as juvenile u/s 3 of the Act and

exercising power of Juvenile Court u/s 7(3) of the Act while maintaining

the conviction of appellant under sec 302 IPC the court directed “the

appellant to be released on probation based on good conduct on executing a

security bond to satisfy the trial court that will keep peace and be of good

behaviour for period of 3 years. It further directed him to pay a sum of Rs.

5000/- as fine, which shall be paid to the widow of the deceased.

In Bhoop Ram's Case19

the Apex Court ruled that since the appellant is now

aged more than 28 years of age there is no question of appellant now being

sent to an approved school under the U.P. Children Act for being detained

there in.

In Poulush Pahan vs. State of Jharkhand and Another20

it was mentioned in the

FIR that the petitioner had love affair with the married daughter of the

complainant and in course of time she became pregnant which led to her

17

ShantanuMitra vs. State of West Bengal,AIR 1998 SC. W 4099, AIR 1999 SC 1587. 18

KrishanBhagwan vs. State of BiharAIR 1989 PAT 217 (FB) Jayendra v. State of U.P. AIR

1982 S.C. 685, 1982 Cri. L.J. 1000.Bhola Bhagat vs. State of Bihar, 1998 Cri. L.J. 1990, 1991

Cri LJ 1283 (Pat) (FB).

19Bhoop Ram vs. State of U.P. 1989. 3 SCC (AIR 1989 SC 1329)

20 2006(1)JCR 146(Jhr)

146

illness. The petitioner is alleged to have given her some herbal medicine for

abortion, which she took and due to which she died. The Court observed that:

“It is a settled law that for declaring a person as juvenile under

the Juvenile Justice Act 2000, the age of the accused has to be

considered on the date of occurrence when the offence was

alleged to have been committed and not on any other

subsequent date. In the present case, the petitioner was found to

be aged about 16-17 years on 8.12.2003 by the Medical Board

consisting of three Doctors who examined the petitioner

physically as well as radiologically. In view of this finding of

the Medical board, the petitioner was aged 14-15 years on

12.2.2002 i.e. on the date of alleged occurrence. In view of this

position, the ACJM was held to have committed grave error in

not declaring the petitioner to be a juvenile. The ACJM ought to

have held the petitioner on the basis of the report of the three

members Medical Board.”

In Pratap Singh vs. State of Jharkhand and another21

The High Court took the

view that “the date of birth, as recorded in the school and the school

certificate, should be taken as best evidence for fixing the age of the appellant

and any other evidence in proof of age would be of much inferior quality”.

The Apex Court was called upon to decide on conflicting views given by in

Arnit Das vs. State of Bihar22

and Umesh Chandra v. State of Rajasthan23

. The

Court referred the matter to the Constitution Bench. The questions which

Bench decided were:

1. Whether the date of occurrence will be the reckoning date for

determining the age of the alleged offender as Juvenile offender or the

date when he is produced in the Court/competent authority?

21

JT 2005(2) SC 271 22

AIR 2000, SC 2264A 23

1982 Cri. L.J. 994

147

2. Whether the Act of 2000 will be applicable in case a proceeding

initiated under 1986 Act and pending when the Act of 2000 was

enforced with effect from 1.4.2001?

Here the court overruled Arnit Das judgment and restored the position

taken in Umesh Chandra case thereby holding that the reckoning date

for the determination of the age of the juvenile is the date of an offence

and not the date when he is produced before the authority or in the

Court.

In Jai Kishan @ Jaiki vs. State of Haryana24

The court held the conviction of

the appellant recorded by the trial court vide judgment dated 16.8.2001, is

upheld. However, the order of sentence passed by the trial court on 18.8.2001,

is hereby set aside. Since the appellant is already on bail, therefore, there is no

need to issue the release warrant.

In Jabar Singh vs. Dinesh & Anr.25

The court observed that “the entry of date

of birth of respondent no.1 in the admission form, school records and transfer

certificate did not satisfy the conditions laid down in Section 35 of the

Evidence Act inasmuch as the entry was not in any public or official register

and was not made either by a public servant in the discharge of his official

duty or by any person in performance of a duty specially enjoined by the law

of the country and, therefore, the entry was not relevant under Section 35 of

the Evidence Act for the purpose of determining the age of respondent no.1 at

the time of commission of the alleged offence and resultantly, the appeal was

allowed setting aside order dated 18.8.2006 and remit the matter to the trial

court for trial of respondent no.1 in accordance with law treating him not to be

a juvenile at the time of commission of the offence”.

In Dharambir vs. State (NCT of Delhi) & Anr.26

the question for

determination is whether or not the appellant, who was admittedly not a

juvenile within the meaning of the Juvenile Justice Act, 1986 when the

24

2010 (4) RCR (Criminal) 783 25

2010 (2) RCR (Criminal) 309 26

2010 (2) RCR (Criminal) 773

148

offences were committed but had not completed 18 years of age on that date,

will be governed by the Act of 2000 and be declared as a juvenile in relation to

the offences alleged to have been committed by him. In Ram Suresh Singh vs.

Prabhat Singh alias Chhotu Singh &Anr.27

respondent no.1 was facing trial in

Nava Nagar P.S. Case No.102 of 2003 on the charge of committing murder of

one Tribhuvan Singh. Appellant in the case was the uncle of the deceased. The

Principal Magistrate Juvenile Justice Board Patna vide order dated 3 August,

2005 held that “on the date of occurrence age of respondent no.1 was more

than twenty years. In this case, however, the documents produced by

respondent no.1 were not found to be forged, fabricated or otherwise

inadmissible in law. If a document is proved to be genuine and satisfies the

requirement of law, it should be, subject to just exceptions, relied upon.”

In Mohan Mali &Anr. vs. State of M.P28

The Supreme Court observed: “In the

facts of this case, we are faced with a situation where the juvenile Dhanna Lal,

was a minor on the date of commission of the offence, and has already

undergone more than the maximum sentence provided under Section 15 of the

2000 Act, by applying the provisions of Rule 98 of the 2007 Rules r/w

Sections 15 and 64 of the 2000 Act, we allow the appeal as far as he is

concerned and direct that he be released forthwith. The bail application filed

on his behalf is also disposed of, accordingly.”

In Lal Mohd. vs. State29

, The court held that “school record in this situation

loses much of its evidentiary value. The court relied on the opinion of the

Medical Board which opined that the petitioner was more than 21 years of

age.”

In Parameswarn vs. State of Kerala30

, juvenile was sentenced to one year

rigorous imprisonment. He challenged his conviction in the Kerala High

27

2010(1)RCR (Criminal) 245 28

2010 (2) RCR (Criminal) 839 29

1l9 (2005) DLT 353 30

2004(2) KLT 1140

149

Court. The H.C upheld the conviction but set aside the sentence. It was

observed that “Benefit which could be given to a convict, shall also be

extended to an under trial as well. Of course, for the commencement of the

trial 1986 Act has to be applied, but as the Act of 2000 has been enforced,

before its termination, necessarily, when the sentence was imposed, the trial

Court was bound to follow the provisions contained in the Act 2000”.

In case of Munshi Khan vs. State of Rajasthan,31

appellant was arrested on the

charges of murder. His case was committed to the Court of Session. During

his trial at the Sessions Court, he filed an application under section 49 of the JJ

(Care and Protection of Children) Act of 2000 with a prayer that on the date of

incident he was below the age of 18 years as indicated by the transfer

certificate issued by Upper Primary School. He further made a request that an

inquiry in respect of his age be conducted as per provisions of Act of 2000.

The Additional Sessions Judge rejected the application and appeal filed and

the High Court held that:

“It has become a settled principle of law that the plea of minority under the

Juvenile Justice Act, 2000 may be taken at any stage of the case, even in

appeal and the minority of the concerned offender has to be determined on the

date of occurrence and not on the date when he appears before the Court or

even though he becomes major dining the course of trial. This being the

position of law, the findings of the Additional Sessions Judge are erroneous

one on the point that the plea about the age was not taken by the accused at the

time when his bail application was heard. From that point of view also the

impugned order cannot be sustained. It is the duty of the court to determine the

age, if there was any doubt in the mind of the court about the genuineness of

the transfer certificate given by the school, the court must itself remove that

doubt after calling of the original record from the school as it was the duty of

the court to get it verified. The Additional Sessions Judge neither called for the

original record from the school nor called for the person by whom the transfer

31

2004 (110) CRLJ 3465 -RAJ

150

certificate was issued, therefore, the court failed in discharging its obligatory

duties”.

In RatanLal @ Ram Ratan vs. State of Rajasthan,32

It was observed by the

High Court:

i. No inquiry was made with regard to determination of age of the

petitioner and the Magistrate before whom the petitioner was produced

had not exercised powers vested in him under section 7 of the Act of

2000. Instead of forwarding the petitioner along with the record to the

competent authority having jurisdiction over the proceeding he

committed the case to the trial court. The trial court also did not make

any inquiry with regard to the age as no such objection or application

was made before that court.

ii. Petitioner has placed on record a certified copy of the bail order passed

by the Add. Sessions Judge, Behror from which it is evident that being

born on 2-9-1984, the petitioner was less than 18 years of age on the

date of occurrence i.e. 5-4-2002 and he appeared to be a child or a

juvenile. The law does not envisage trial of such an accused by the

court below. He can be tried by the Principal Magistrate, Juvenile

Justice Court. Thus, the trial by the Sessions Court against a juvenile

stands vitiated because of the inherent lack of jurisdiction to conduct

trial against the juvenile‟ or the 'child'.

iii. The trial court was empowered under section 6(2) of the Act of 2000 to

conduct the inquiry in accordance with the provisions of section 49 of

the Act of 2000 with regard to the determination of age of petitioner.

The trial court has taken the view that such an objection could not be

raised at the stage of trial particularly at the far end of the trial, though,

the provisions with regard to holding due inquiry about the age of a

person who appears to be a juvenile or the child are mandatory.

32

2004 Cr.L.J. (Raj) 734

151

iv. In the instant case, it is evident that the plea of juvenility was raised

even at the initial stage of bail and petitioner was granted bail on the

ground of his being a juvenile. In this view of the matter, therefore, the

order passed by the Court below cannot be sustained and deserves to

be quashed so far as the petitioner is concerned. Consequently, petition

was allowed.

In Mahendra Singh vs. State of Rajasthan,33

the court held that the appellant

faced trial for having committed murder. Trial judge convicted and sentenced

him life imprisonment. The appellant contended, on the date of the incident he

was less than eighteen years of age and as per the JJ (Care and Protection of

Children) Act, 2000, he was juvenile, and, therefore, in view of Section 20 of

the JJ Act he could not have been sentenced.

In Parmod Kumar Sethi vs. State of Orissa,34

Following observations were

made by the court,

i. The enquiry as to the age of the juvenile has to be made when he is

brought or appears before the competent authority and the Police

Officer or a Magistrate

ii. The competent authority then shall proceed to hold enquiry as to the

age of that person for determining the same by reference to the date of

the appearance of the person before it or by reference to the date when

the person was brought before it under any of the provisions of the Act.

iii. The date of the commission of the offence is irrelevant for

Forming out whether the person is a juvenile within the

meaning of clause (i) of Section 2 of the Act. The crucial date

for determining the question whether the person is a juvenile is

the date when he is brought before the competent authority.

Arnit Das decision relied on.

33

2004-(l10)-CRLJ -1606 -RAJ

34

ibid

152

In Hemal Mian vs. State of Jharkhand,35

the petitioner submitted that he been

falsely implicated in the case and he is a juvenile and the Court below did not

consider the case of the petitioner though the petitioner is a juvenile. The

Jharkhand High Court sent back the case to the concerned court for

determination of the age of the petitioner and directed the concerned court to

pass a fresh order in view of decision arrived at.

In Motilal Hansda vs. State of Bihar,36

the appeal was directed against the

judgment of the Additional Sessions Judge, Godda convicting the appellant

and sentencing him to undergo rigorous imprisonment for 2 years. The

appellant submitted that a copy of the certificate duly attested by the Principle

of the School was produced to show that appellant's date of birth was 9th

August. 1975. Accordingly, he was aged I5 years and l0 months at the time of

alleged occurrence i.e. l0.6.l990.

The High Court held “after going through the order of refusal of trial court and

certificate produced by the appellant, he was discharged from bail bonds.

Appellant was not sent to Juvenile Court, as he had crossed the age of

juvenile”.

In case of Girish vs. State of Kerala,37

the concurrent verdict of guilty,

conviction and sentence imposed on the Petitioner - accused under Section

394 IPC were assailed by him in this revision petition on the ground that he

was a juvenile and for proving the same he took the help of a certificate issued

by the Head Master of the School, where he was studying. This certificate

stated that the petitioner-accused was a juvenile (born on 03.05.1974) on the

date of the crime-night of 20.5.1989, hence below the age of 16 years and a

juvenile”. The prayer was made to quash the entire proceedings before the

courts below. It was held by the court that “the finding that the petitioner is

35

2004-(110)-CRLJ -1503Jha 36

2004 (4) JCR 171 (Jhr)

37

2004(1) KLT 419

153

guilty of the offence alleged against him is eminently correct and does not call

for interference by invoking the revisional jurisdiction of superintendence and

correction vested in this Court”.

To avoid a vacuum and to ensure ends of justice, it can certainly be held that

“until a JJB is constituted in accordance with the Juvenile Justice Act, 2000

and the Rules promulgated, all Judicial First Class Magistrates or all Chief

Judicial Magistrates shall be competent to exercise functions of the JJB.

Considering the fact that in Kerala, the Chief Judicial Magistrates sitting alone

used to discharge functions of the Juvenile Courts under the Juvenile Justice

Act. 1986, it can certainly be held by invoking powers under Section 482 Cr.

P.C ., that the Chief Judicial Magistrates must exercise such functions of the

JJB to be constituted under Section 4 of the Juvenile Justice Act, 2000. Until

the Boards are constituted the only safety valve is to stipulate that the Chief

Judicial Magistrates shall have to exercise such functions.”

In Khunnu Yadav vs. Rajesh Maurya and another38

, respondent claimed to be

juvenile on the date of the occurrence. The trial court got him medically

examined and the medical report showed that he was 19 years. He was

therefore held not to be juvenile. But when he filed revision petition in the

high court and produced certificate from the school which proved he is

juvenile, high court declared him to be juvenile. Against this decision,

appellant brother of the deceased, murdered by respondent, approached the

Apex Court. The Apex Court allowed the appeal and held that “the crucial

date for determining the status as juvenile is the date when he is brought

before the competent authority and not the date when the offence is

committed. Since in this case, accused moved the application for determining

his status as juvenile after he attained the age of 16 years, he cannot be treated

as juvenile.”

38

2003 (10) SCC 291

154

In Om Prakash (alias Raju) vs. State of Uttraanchal39

, regarding the age of the

appellant, a contention was raised that he was juvenile at the time of

commission of crime. No proof was however adduced in support of this. Also,

the high court noted that “he had opened the bank account in Punjab National

Bank at Dehradun. Relying on this bank account both High Court and the trial

court took the view that the appellant would not have been in position to open

the account unless he was a major and declared himself to be so”. In the

Supreme Court, appellant challenged this view. The Supreme Court dismissed

his appeal and held that “the approach of the trial court as well as the high

court on this aspect cannot be faulted.”

ln Surinder Singh vs. State of U.P40

, the Supreme Court observed that “when

no plea is raised by accused that he is juvenile, then the Court on its own is not

required to determine the age of the accused in absence of such plea.”

In case of Vikrant Kumar Alias Sonu vs. State of U.P. and another41

, a

complaint was lodged against the applicant for an offence under Section 377,

511 I.P.C. When the charge sheet was submitted in court the applicant claimed

himself to be a juvenile and sought the benefit of Juvenile Justice Act thereby

desired to be tried by a Juvenile Judge.

The High Court allowed revision and set aside the appellate Court‟s order. The

applicant was declared a juvenile and observed that:

i. The Complainant‟s contention was that the trial judge erred in not

making a serious endeavour to call for the record from the National

Inter College, Badhalganj Born. The High Court held that the approach

of the juvenile court cannot be termed in any manner perverse or

prejudicial to the interest of the complainant.

39

2003 (1) SCC 648 40

2003 (10) SCC 26 41

2003 Cr. LJ 1094

155

ii. The court held that failure to file any response to an affidavit makes it

clear that the complainant had been manipulating the evidence against

the applicant.

iii. Submission that the applicant appeared in High School Examination

from National Inter College, Badhalganj in the past and failed was held

to be a device used by the complainant to defeat the claim of the

applicant.

iv. Medical opinion varies by two years either way and as the law stands

the interpretation of the beneficial provisions to the accused should be

adhered to by the court strictly.

In Bhupendra and Others vs. State of U.P.42

three appellants were convicted

and sentenced to life imprisonment for murder of two persons. It was held “to

be simply a desperate attempt to get away from legal consequences of serious

crime committed by him.”

In Vijai Singh and Another vs. State of U.P. and Another43

, the court

considered the fact and held that the revision filed against the order of

Additional Sessions Judge, Fast Track Court Agra rejecting the application of

revisionist for holding them juvenile and sending the case to the Juvenile

Judge was dismissed by the high court on the ground that the relevant date for

the purpose of considering the question of juvenile would be either the date on

which the offence was committed or on the date when the offender was

brought to the Court or before the competent authority. Neither on the date of

commission of offence nor on the date of their surrender they were juvenile as

per the Juvenile Justice Act 1986, and therefore they were denied benefits of

section 20 of the new Act of 2000 holding that the position with regard to the

pending cases is made clear enough which shows that if any trial is pending on

the date of enforcement of the new Act, the proceedings shall be concluded

under the provisions of the old Act. This provision has been made regarding

42

2003(109) Cr. L.J. 3921 43

2003(109) Cr. L.J. 3461

156

the proceedings in respect of a juvenile but it does not say that a person not

held to be juvenile under the old Act can be treated juvenile by the new Act if

he is below the age of 15 years.

In case of Master Rajeev Shankar Lal Parmar & another vs. Officer-incharge,

Police Station, Malad and Others44

as per facts, a First Information Report

was filed against accused for offences punishable under section 302 and 307

of the Indian Penal Code. The case was committed to the Sessions Court.

Though petitioner had stated his age to be 22 years and accordingly was

arrested and kept as under trial prisoner, Sessions Judge found him to be much

younger than 22 years and ascertaining after an inquiry that he was below is

years. Remanded his case to the Juvenile Justice Board (JJB). In spite of these

directions, accused-petitioner was neither shifted to the Observation Home nor

was his case placed before the JJB. On the other hand, the state challenged

directions of Sessions Judge stating that section 49 of the Act of 2000 does not

permit him to record findings as to age of the accused and pass an order on

that basis. Public Interest Litigation was filed in the Bombay High Court on

behalf of accused petitioner to declare the petitioner's incarceration in Mumbai

Central Prison unlawful and in violation of the Juvenile Justice (Care and

Protection of Children) Act, 2000 and the Constitution of India and with many

other directions.

It was held that “Sessions Judge can hold an inquiry as to age of accused on

his own under section 49 of the Act of 2000. Once it is established that

accused is juvenile, he should be immediately shifted to observation home and

his case should be transferred to the JJB. No time should be lost in taking such

steps and if any time is lost and accused Juvenile has to suffer, he should be

compensated by the state.”

Application filed by the state challenging the order of Sessions Judge was

dismissed. Respondents were directed to take immediate steps to shift accused

44

2003-(109) CRLJ - 4522-BOM

157

petitioner to the Observation Home and to produce him before the JJB.

Respondent was ordered to pay compensation to petitioner of an amount of

rupees 15,000/- and observing that:

1. Keeping in view the provisions of the Act and the ratio laid

down by the Supreme Court in GopinathGhosh vs. State of

West Bengal, SheelaBarse v. Union of India, and Bhola Bhagat

vs. State of Bihar, the Additional Sessions Judge can exercise

the power to hold an inquiry and record a finding as to the age

of the accused.

2. Regarding compensation to petitioner, it is an admitted fact that

the order was passed by the Additional Sessions Judge on 7th

March, 2003 and the order was received by the Thane Jail

Authorities on the same day i.e. on 7th March, 2003. However,

because of non-availability of police escort, the order could not

be implemented and petitioner could not be shifted to the

Observation Home nor he could be produced before the JJB. It

is thus clear that without there being any fault on the part of the

accused, he was kept in prison, firstly at Thane and then in

Mumbai. Therefore, his prayer for payment of compensation

must be upheld. In the facts and circumstances, therefore, ends

of justice would be met, if the respondent-State is ordered to

pay to petitioner an amount of compensation of Rs.15,000/-.

In Mohammed Arif vs. State of Rajasthan,45

the High Court found that “the

A.C.J.M. did not take into consideration the opinion given by the Medical

Board which opined that the age of the accused petitioner was between I6 to

18 years also. He mainly based his findings on the basis of the age of the

accused petitioner as stated in the Voters-list and on observation of his

physical appearance in the Court. He neither allowed an opportunity to cross-

examine the witnesses nor considered the material evidence available on the

45

RLW 2003(2) Raj 867

158

record. Consequently, the High Court set aside the order of ACJM and

directed the Additional Sessions Judge to complete the inquiry regarding the

age of the accused petitioner on the date of occurrence after giving opportunity

of hearing to both the parties and decide the same afresh as far as possible

within a period of one month from the date of receipt of a copy of this order.”

In Manjyoti vs. State,46

after lodging of FIR against accused petitioner his

father filed an application for making an entry in the birth register regarding

the birth of accused-petitioner, alleging therein that his son is a juvenile/minor.

Furthermore except the oral evidence, there was nothing else on the record to

show that the accused-petitioner was a juvenile at the relevant time. On the

other hand, the ossification test showed that accused-petitioner Manjyoti was

not a juvenile. Furthermore, it was brought to the notice of the Court that

Manjyoti had appeared as a prosecution witness in a Sessions trial in which he

had given his age as 21 years on the date when he had appeared as a witness in

the said Sessions case. Hence the Courts rightly come to the conclusion that no

reliance could be placed on the birth entry in question and on the basis of the

said birth entry, the accused-petitioner could not be declared as a juvenile.

In Lallan Singh vs. State of U.P. and Another47

, the Sessions Judge,

Chandauli, held that “the new Act received the assent of the President of India

on December 30, 2000 and was published in the Gazette Extra-Ordinary, on

30 December 2000, therefore, the commencement of the Act was from 30-12-

2000. Holding same, he extended the benefit of new Act to the accused

declaring him as juvenile under Juvenile Justice (Care and Protection of

Children) Act, 2000. The high court in revision reversed the order of the

Sessions Judge, noticing that the new Act came into force on April 1, 2001.”

In State of U. P. vs. Ram Bharat and others etc.48

, as per facts, a shocking

crime in which nine persons lost their lives on account of homicidal act, 53

46

2002(108) CRLJ 2777 P&H 47

2002 Cr.L.J. 1242 (A11) 48

2002 Cr.L.J. 1529 (All)

159

person were prosecuted. Out of them two died during the trial, surviving 51

accused persons were put up for trial. 25 accused persons were convicted on

various counts and sentenced to varying prison terms. The remaining 26 were

acquitted. Against the order of acquittal the State has preferred an appeal. Out

of the convicted accused two died during the pendency leaving only 23

surviving convicted appellants. Out of 23 convicted appellants, three

convicted accused persons were minors at the time of the incident and,

therefore, entitled to the benefit under the provisions of the U.P. Children Act,

1951. It was urged on their behalf that they are entitled to get the benefit of the

provisions of the U.P. Children Act 1951. State on the other hand placed

reliance on the decision of the Apex Court in the case of Arnit Das vs. State of

Bihar and urged that from a composite reading of the provisions of Sections 3,

8, and 32 of the Juvenile Justice Act, 1986 it would be apparent that the

juvenility of an accused is to be determined with reference to the date which

he was brought to the Court or the Competent Authority.

The Court did not accept the stand taken by the State. It did not rely on Arnit

Das decision holding that “there are catena (series) of decisions of the Apex

Court as well as other High Courts by which it is well established that

juvenility of an accused or his age has to be determined with reference to the

date of the offence.” In this case no evidence either documentary or oral was

led at any stage of the trial to indicate that three accused were below 16 years

of age on the date of the incident. The Court, therefore, relied on the age as

disclosed by them in their statements under Section 313, Cr. P.C. which was

less than 16 years of age on the date of the incident and consequently, they

were held to fall within the ambit of expression „child‟ as defined in Section

2(4) of the U.P. Children Act. Section 2T of the said Act prohibited sentence

and imprisonment for any term to an accused who was a „Child‟ as determined

on the date of occurrence. Each one of the three accused persons who fall in

the category of „child‟ within the meaning of Section 2(4) of the U.P. Children

Act was at the time of this appeal being more than 40 years of age, were not

160

sent to any approved school or Children's Home under the provisions of the

said Act for being detained there. Therefore, the sentence of imprisonment

imposed upon these three accused persons was quashed.

In Rajinder Chandra vs. State of Chhattisgarh and anr49

, as per fact, accused

was apprehended for an offence under section 302/34 of the Indian Penal

Code. He claimed himself to be a juvenile as having not attained the age of 16

years and, therefore, entitled to the benefit of the Juvenile Justice Act, l986.

An enquiry was held. And trial court as well as Sessions Court held that he

was not juvenile. Both the trial court and the Sessions Court scrutinized the

evidence adduced on behalf of the accused by applying the principle that it

was the accused who was claiming the benefit of the Juvenile Justice Act and

therefore, the onus lay on him to prove that he was a juvenile and inasmuch as

the oral and documentary evidence adduced by him left open room for doubt,

the onus could not have been said to have discharged. The accused was also

subjected to radiological examination. In ossification test report, he was

opined to be of l5-16 years of age. The Sessions court, by reference to Modi`s

Medical Jurisprudence, held that “a variation of 2 to 3 years on either side was

permissible in the result of ossification test, and therefore, on the basis of such

test no definite opinion could be formed”. Petitioner thereafter approached the

high Court of Madhya Pradesh. The High Court, in exercise of its revision

jurisdiction, found the findings of both the court below it to be legally infirm

and hence not sustainable and noticed that though in the mark sheet of class

VIII of accused there appeared to be some overwriting but the same was

attested by the officer who had issued it. The high court held him to be

juvenile. Against this judgment of the High Court, victim‟s father preferred

special leave petition before the Supreme Court of India. The apex Court

dismissed the appeal and agreed with the stand taken by the High Court.

49

AIR 2002 SC 748

161

In Kalinath Munda vs. State of Bihar50

the apex Court held that “it is

impossible to undertake an inquiry and held that extrapolation of age at the

time of occurrence from age mentioned in judgment of Sessions Court is not

by itself enough. However, appellant was permitted to approach State

Government for commutation of sentence under Criminal Procedure Code.”

In Jitendra Ram @ Jitu vs. State of Jharkhand,51

The Court observed that when

the offence was committed, since the Juvenile Justice Act. 1986 had not come

into force, the provisions thereof would have no application; the Bihar

Children Act, 1982 was, however, applicable in this case. In terms of the

provisions of the said Act, a child means a boy who has not attained the age of

16 years. The Children Court was to be constituted under Section 5 of the Act,

but it is not in dispute that such court had not been constituted at the relevant

time.

The provisions of Juvenile Justice (Care and Protection of Children) Act,

2000, it appears, have been given effect to in the State of Jharkhand only in or

about July 2005. Before the trial court, the appellant did not raise any plea that

he was a Juvenile. It is true that such a plea was raised while moving an

application for bail for the first time; but from a perusal of the order passed by

the Patna High Court dated 06.05.1986, it would appear that the ground that

the appellant was a child itself was not the only one on which the order

granting bail to the appellant was passed.

The appellant was examined under Section 313 CrPC. where his age was

estimated to be 28 years. The said estimated age was recorded by the trial

court again on 09.04.1999 being 28 years. In the judgment of the trial court

again the aforementioned age was mentioned. In absence of any plea having

been taken by the appellant, it is not disputed, that the court at no stage had

gone into the question as regard the age of the appellant.

50

2001 (9) SCC 228 51

(In the Supreme Court of India, Criminal Appeal No. 489 of 2006 [Arising out of S.L.P.

(Crl).No. 3494 of 2005]. Decided On: 25.04.2006)

162

The provisions of a beneficial legislation should ordinarily be given effect to.

However, we may notice that the appellant is literate. Presumably he attended

some school. However, no certificate of his date of birth or any other proof as

regard his date of birth is available on records. No other material apart nom

the estimate of the court has been brought to our notice. In the absence of any

material on record, we cannot arrive at a definite conclusion that the appellant

as on the date of commission of the offence was a child within the meaning of

the said Act.

In Sushil Kumar vs. Rakesh Kumar,52

the Supreme Court as regards

determination of age of a candidate in terms of Section 36(2) of the

Representation of the People Act, 1951 observed:

“The age of a person in an election petition has to be determined not only on

the basis of the materials placed on record but also upon taking into

consideration the circumstances attending thereto.”

In Updesh Kumar and Ors. vs. Prithvi Singh and Ors,53

the Supreme Court

relied on the matriculation certificate holding that the correction of the date of

the birth in the certificate was an official act and the must be presumed to have

been done in accordance with law.

In Umesh Chandra vs. State of Rajasthan,54

a register maintained by a public

school of repute was produced. The Court relied thereupon, opining that

Section 35 cannot be read with Sections 73 and 74 of the Evidence Act. If a

public school maintains a register in ordinary course of business the same

would be admissible in evidence.

In Bhoop Ram vs. State of U.P.,55

appellant was treated to be a child within

the meaning of Section 2(4) of the Act; upon taking into consideration three

factors:

52

MANU/SC/ 0826/ 2003 53

MANU/SC/0040/200l 54

MANU/SC/0125/l982 55

MANU/SC/0070/l989

163

(i) that the appellant had produced a school certificate and

correctness whereof was not questioned;

(ii) the trial Judge thought it fit to award the lesser sentence of

imprisonment for life instead of capital punishment when he

pronounced the judgment on 19.09.1977 on the ground that the

appellant was 17 years of age which gave credence to the

appellant's case that he was less than 16 years of age on

03.10.1975 when the offences were committed; and

(iii) although he was medically examined, for determination of age,

the doctor based his opinion only on an estimate and possibility

of an error of creeping into the said opinion could not be d out.

The Court, therefore, took into consideration on more than one

factor in accepting the plea of the appellant therein that he was

minor on the date of commission of the offence.

In Hema Ram and Ors. vs. State of Raj. andAnr,56

issue was whether school

record is admissible under section 35 of the Evidence Act for age

determination of a juvenile?

The court relying on the case of Birad Mal Singhvi vs. Anand Purohit held

that “school records are admissible as evidence provided genuineness of the

document is proved by the school authorities. Further the documents need to

be maintained in due course of business”. The court made following

observations:

If the entry in the scholars register regarding date of birth is made on the basis

of information given by parents, the entry would have evidentiary value but if

it is given by a stranger or by someone else who had no special means of

knowledge of the date of birth. Such an entry will have no evidentiary value.

Merely because the documents such as extract of School Register, mark list or

certificate of Education Board etc. are proved, it does not mean that the

contents of documents are also proved. Mere proof of such documents would

56

RLW 2006(l) Raj 476

164

not tantamount to proof of all the contents or the correctness of date of birth

stated in the documents.

Academic documents for the purpose of admissibility under section 35 of the

Evidence Act, need to be officially testified and maintained in due course of

the business. The mere fact that they have been certified by an authority does

not prove the contents of the certificate, but it has to be proved that its contents

are based on the information given by the parents.

In Budhan Thakur @ Mithilesh Thakur vs.The State of Bihar57

, the High

Court held that “it is a fit case in which the claim of the petitioner deserves to

be examined by the Juvenile Justice Board in accordance with law. Prior to the

Act of 2000 coming into force, the Juvenile Justice Act of 1986 was effective.

The 1986 Act provided that juvenile would mean a boy who had not attained

the age of16 years or the girl who had not attained the age of 18 years. The

Act of 2000 has increased the age of juvenile from 16 to 18 years. Since the

offence took place after the Act of 2000'come into force, the provisions of the

Act of 2000 would be applicable and the appellant have to be tried in

accordance with the provisions of the Act of 2000 only.”

In Satbir Singh and Ors.vs. State of Haryana,58

The Court observed that

Section 2(h) defences „Juveni1e‟ means a boy who has not attained the age of

16 years or a girl who has not attained the age of 18 years. As per his own

statement accused was 17 years of age as on 13.6.1989, therefore, he is not

entitled to the benefit of Juvenile Justice Act, 1986.

In S.D. Pawan vs. State by Hebbagodi Police59

, it was held that the idea

behind the new Act is to make Justice System meant for juveniles more

appreciative of the developmental needs in comparison to criminal justice

system as applicable to adults.

57

MANU/BH/00l2/2006 High Court of Patna, Cr. Misc. No. 13896 of 2005, Decided On: 58

JT 2005 (8) SC 394 59

ILR 2006 KAR 1570

165

And recently in 2016 in case titled Sunita Rani vs. State of Punjab and anr60

,

the issue was determination of age of juvenile because the matriculation

certificate and the certificate issued by the Registrar, Birth and Death, the date

of birth is different.

The present revision petition has been filed to challenge judgment dated

02.07.2015 passed by the Sessions Judge, Pathankot dismissing the appeal

filed against order dated 18.05.2015 passed by Principal

Magistrate, Juvenile Justice Board, Pathankot.

FIR No.11 dated 07.12.2015 was registered under Section 376 of Indian Penal

Code and Section 4 of the Protection of Children from Sexual Offences Act,

2012 against respondent No.2. However, respondent No.2 was juvenile at the

time of occurrence as his date of birth in the matriculation certificate was

recorded as 29.01.1997. He was less than 18 years of age on the date of

occurrence i.e., 07.12.2015. Respondent No.2 was sent to Observation Home,

Hoshiarpur vide order dated 18.05.2015 as he was declared juvenile under

Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007

(hereinafter called as 'Rules 2007').

Aggrieved by said order dated 18.05.2015, the petitioner-complainant filed an

appeal before the Sessions Judge, Pathankot and the same was dismissed on

02.07.2015, which is subject matter of challenge in the present revision

petition.

Leaned counsel for the petitioner submits that both the Courts below have

ignored the certificate issued by the Registrar, Births and Deaths. The date of

birth mentioned in the matriculation certificate is different from the certificate

issued by the Registrar, Births and Deaths. Learned counsel further submits

that in case, the date of birth mentioned in the certificate issued by the

Registrar, Birth and Death, is considered, then accused-respondent No.2 does

not fall within the definition of Juvenile as the issue is in conflict with law.

The case where the issue relating to child or juvenile is in conflict with law,

60

2016(3) R.C.R (Cri) 797

166

then it is to be referred to the Board or Committee as the case may be as per

provisions of Rule 19 of the Rules 2007. In the present case, the date of birth

of respondent No.2 in the matriculation certificate is different from the birth

certificate and as such, as per provisions of Rule 19 of the Rules 2007, it

should have been referred to the Board or Committee. Learned counsel also

submits that an application was also moved under Rule 12(3) of the Rules

2007 but the same has not been decided so far. Learned counsel for the

petitioner has also relied upon Division Bench judgment of this Court

in Ambika Kaul vs. Central Board of Secondary Education and others61

, in

support of his contentions.

Learned counsel for respondent No.1 - State submits that the age of accused-

respondent No.2 was less than 18 years at the time of occurrence and he was

declared juvenile under Rule 12 of the Rules 2007. A detailed finding has been

given by the Appellate Court also and no interference, therefore, is required.

Heard arguments of learned counsel for the petitioner as well as learned State

counsel and have also perused the order passed by the Sessions Judge,

Pathankot as well as order passed by Principal Magistrate, Juvenile Justice

Board, Pathankot.

Admittedly, as per date of birth mentioned in matriculation certificate,

accused-respondent No.2 was juvenile at the time of occurrence but in case,

the date mentioned in the birth certificate i.e., 09.05.1996 is considered, he

was major.

The issue for consideration before this Court is whether entry in the birth

certificate will prevail in case; the same is in conflict with the date of birth

recorded in birth certificate or matriculation certificate. No doubt, entry in

birth certificate is made on the asking of parents of the child immediately after

the birth. When a child is got admitted in the school, the date of birth is

informed by the parents or the person, who goes to school for admission. In

case, the same is based on some document, then there is no conflict but in the

61

2015(3) SCT 350

167

present case, the date of birth recorded in the matriculation certificate is

different from the birth certificate. In case, the date of birth recorded in

matriculation certificate is considered, accused-respondent No.2 was

minor/ juvenile at the time of occurrence but in case, the date of birth

mentioned in the birth certificate is considered, then accused-respondent No.2

was not minor/ juvenile at the time of occurrence. If there is conflict with law,

procedure is mentioned in Rule 12 of the Rules 2007, which is reproduced as

under: -

Rule 12: Procedure to be followed in determination of Age.-

i. In every case concerning a child or a juvenile in conflict with

law, the court or the Board or as the case may be the

Committee referred to in rule 19 of these rules shall determine

the age of such juvenile or child or a juvenile in conflict with

law within a period of thirty days from the date of making of

the application for that purpose.

ii. The court or the Board or as the case may be the Committee

shall decide the juvenility or otherwise of the juvenile or the

child or as the case may be the juvenile in conflict with law,

prima facie on the basis of physical appearance or documents,

if available, and send him to the observation home or in jail.

iii. In every case concerning a child or juvenile in conflict with

law, the age determination inquiry shall be conducted by the

court or the Board or, as the case may be, the Committee by

seeking evidence by obtaining -

(a) (i) the matriculation or equivalent certificates, if available; and in

the absence whereof;

(ii) the date of birth certificate from the school (other than a play

school) first attended; and in the absence whereof;

(iii) the birth certificate given by a corporation or a municipal authority

or a panchayat;

168

(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above,

the medical opinion will be sought from a duly constituted

Medical Board, which will declare the age of the juvenile or child.

In case exact assessment of the age cannot be done, the Court or

the Board or, as the case may be, the Committee, for the reasons

to be recorded by them, may, if considered necessary, give benefit

to the child or juvenile by considering his/her age on lower side

within the margin of one year.

and, while passing orders in such case shall, after taking into

consideration such evidence as may be available, or the medical

opinion, as the case may be, record a finding in respect of his age

and either of the evidence specified in any of the clauses (a)(i),

(ii), (iii) or in the absence whereof, clause (b) shall be the

conclusive proof of the age as regards such child or the juvenile in

conflict with law.

iv. If the age of a juvenile or child or the juvenile in conflict with law

is found to be below 18 years on the date of offence, on the basis of

any of the conclusive proof specified in sub-rule (3), the court or

the Board or as the case may be the Committee shall in writing

pass an order stating the age and declaring the status of juvenility

or otherwise, for the purpose of the Act and these rules and a copy

of the order shall be given to such juvenile or the person

concerned.

v. Save and except where, further inquiry or otherwise is required, inter

alia, in terms of section 7A, section 64 of the Act and these rules,

no further inquiry shall be conducted by the court or the Board

after examining and obtaining the certificate or any other

documentary proof referred to in sub-rule (3) of this rule.

vi. The provisions contained in this rule shall also apply to those

disposed off cases, where the status of juvenility has not been

169

determined in accordance with the provisions contained in sub

rule(3) and the Act, requiring dispensation of the sentence under

the Act for passing appropriate order in the interest of the

juvenile in conflict with law.

As per provisions of Rule 12(3) of the Rules 2007, in case, the Court is

concerned and determination of age of a child or juvenile is in conflict with

law, then an inquiry can be conducted by seeking evidence by obtaining the

matriculation or equivalent certificate, if available. In the absence of any such

document, the date of birth certificate from school first attended or in absence

thereof, the birth certificate issued by the corporation or municipal authority or

the panchayat. In presence of matriculation or equivalent certificate, the Court

cannot give reference to birth certificate issued by the authority.

In the present case, the date of birth is in conflict as in both the documents i.e.,

matriculation certificate and the certificate issued by the Registrar, Births and

Deaths, the date of birth is different.

The same issue was before the Delhi High Court in Harish Yadav Thru Shri

Raj Kumar Yadav vs. State62

, as well as before this Court in Resham Singh v.

Union of India and another63

, wherein it was held that “entry in birth

certificate would prevail in case of the circumstances of conflict between the

date of birth recorded in birth certificate and school leaving certificate”.

In the impugned order dated 02.07.2015 passed by the Sessions Judge,

Pathankot, it has been held that “in presence of matriculation or equivalent

certificates, the Court cannot give preference to birth certificate issued by

municipal authority as has been done in the present case. While recording

finding it has been mentioned that in case, the matriculation certificate of the

accused is available, then it has to be preferred and in the absence thereof, any

other document is to be considered.

62

2011(6) RCR (cri) 62 63

2008(1) RCR (cri) 158

170

During arguments, learned counsel for the petitioner submits that an

application has been filed under Rule 12(3) of the Rules 2007 and the same

has not been decided so far. Learned counsel also submits that in case, the

application is decided in accordance with the provisions of the Juvenile Justice

(Care and protection of Children) Act 2000 and the Rules, 2007, the petitioner

would be satisfied.

In view of the provisions as mentioned in the Act as well as Rules 2007, it is

apparent that an inquiry is to be conducted as per Rule 19 of the Rules 2007.

The application moved by the petitioner is still pending and the same has not

been decided as without taking any decision on the application and without

conducting any inquiry, respondent No.2 has been declared juvenile and order

declaring him juvenile has also been upheld by the Sessions Judge, Pathankot.

Accordingly, this revision petition is allowed and impugned order dated

02.07.2015 passed by the Sessions Judge, Pathankot as well as order dated

18.05.2015 passed by Principal Magistrate, Juvenile Justice Board, Pathankot

are set-aside with a direction to conduct necessary inquiry as per provisions of

law as mentioned above and pass necessary order after conducting proper

inquiry.

7.2.2 Jurisdiction of the Board/Court.

In Raghbir's Case64

the question for consideration before Supreme Court in

the appeal by special leave was whether a person is less than 16 years of

age and accused of offence under section 302 can get benefit of Haryana

Children Act.

The Apex Court noticed its earlier decision in another case65

and held that

“the trial of a child under the provisions of the Act was not barred.”

In case of Sant Das vs. State of U.P. and others66

the principal issue was in the

absence of the setting up of the Juvenile Justice Board as per the requirement

64

Raghbir v. State of Haryana.1981 Cri.L.J. 1497. 65

Rohtas v. State of Haryana AIR 1979 SC 1938 : 1979 Cri LJ 1365.

171

of section 5 of the Juvenile Justice (Care and Protection of Children) Act,

2000, which authority should exercise the powers of the Board? After being

taken into custody for offence committed under section 302, IPC, the writ

petitioner had moved two applications, one for declaring him as a juvenile as

he was only 16 years 5 months and 4 days old on the date of the offence and

second for Bail. Sessions Judge, Fatehpur rejected both the applications on the

ground that the Sessions Court was not the proper forum for both reliefs and

petitioner should have first approached the Magistrate first under section 437

Cr.P.C. and only after its rejection before Sessions Judge under Section 439

Cr.P.C. Against this order writ petition was filed before the Allahabad High

Court. Petition was dismissed and the order of the Sessions Judge upheld. It

was observed that “where Board is yet to be constituted for conducting trial of

the juveniles, the proper forum that can exercise the powers of the Board

would be the Magistrate having jurisdiction under section 437 Cr.P.C. and not

the Sessions Court.”

In Ajit Singh vs. Union of India and Ors.67

petitioner joined the army on 15th

December, 2000. When he was posted in Rajasthan and there some offence of

theft was committed, a Court of Enquiry was ordered against the petitioner

and after recording of evidence, General Court Martial commenced and the

petitioner was sentenced to rigorous imprisonment for seven years and was

dismissed from his service. Thereafter the petitioner challenged the

proceedings of General Court Martial under the Army Act and prayed that the

conviction and sentence be quashed and he may be released from jail on the

ground that he was a juvenile at the time of commencement of offence and

therefore he could not be tried by the provisions of General Court Martial

under the Army Act.

The argument of the respondent that as the petitioner was recruited in the

Army, even though he was a juvenile, the Army Act will have the applicability

66

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2004 Cri LJ 3994

172

and will override the provision of Juvenile Justice (Care & Protection of

Children) Act, 2000, was rejected and the Court held that “It cannot be said

that the Parliament while enacting the present Act of 2000 was not aware that

persons are recruited in the Army at the age of 16 years.” Therefore the

proceedings of the General Court Martial were quashed and the petitioner was

set free.

It was observed that: “the mere fact that the age has been enhanced to 18

years, irrespective of a boy or a girl and the Army Act is of the year 1950, it

cannot be said that the legislature wanted to keep persons who are under the

Army Act amenable to Army Act although they were juvenile under the

present Act. In that case a special exception was to be made under the present

Act. Therefore, we find no force in the arguments of the respondent that

Juvenile Act will have no applicability to the person governed under Army

Act. The reliance placed by the respondent on Article 33 of the Constitution of

India is also misplaced. Article 33 only authorize the Parliament in relation to

the members of the armed forces to determine to what extent any of the

Fundamental Rights can be restricted or abridged so as to ensure the proper

discharge of their duties and the maintenance of discipline among them.

Article 33 cannot be read to oust the applicability of Juvenile Justice (Care &

Protection of Children) Act, 2000 which is also an Act of Parliament and in

the absence of any exception provided in the said Act with regard to its

jurisdiction or applicability.”

In Raj Singh vs. State of Haryana68

trial was quashed and the Court directed

that his trial should be conducted in accordance with the provisions of the

Juvenile Justice Act.

In re: Sessions Judge, Kalpetta (Kerala)69

a Bench of the Kerala High Court in

dealing with an apparent conflict between the Juvenile Justice Act, 1986 and

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989,

68

(2000)6 SCC 759 69

1995 Cri.L.J.330

173

as to which would prevail over the other, held that the provisions of latter Act

would have no overriding effect over the provisions of 1986 Act.

In case of Sunil Kumar vs. State of Haryana70

, the petitioner was an accused

in FIR No.233 dated 17.5.1990 registered under Sections 376, 366 and 201

IPC at P.S. Sadar, Hisar. He was accused of committing rape on the

prosecutrix on 16.5.1990, petitioner was sent to face trial for the aforesaid

offence and was convicted to undergo R.I. for 7 years under Section 376 IPC

along with other offences. A Criminal revision before High Court remained

unsuccessful and was dismissed. During pendency of the criminal appeal

before High Court, the petitioner made an application pleading that he was

juvenile at the time of commission of offence. The High Court disposed of the

appeal without considering the question of juvenility of the petitioner. On

dismissal of appeal, the petitioner preferred Special Leave Petition before the

Supreme Court which was also dismissed. Being unsuccessful, the petitioner

preferred a review petition before Supreme Court which came to upon

provision of Sections 7-A and 20 of the Juvenile Justice Act, 2000. The court

after considering the relevant provision held that the competent court has the

jurisdiction to pursue the juvenility of the petitioner irrespective of upholding

the conviction by the Supreme Court. It further held that the question of

juvenility can be decided by the court of Judicial Magistrate Ist Class, Judicial

Magistrate IInd Class and Executive Magistrates including the High Court

exercising the criminal jurisdiction.

In case of P.Deeptha and another vs. V.S.Chundrasekaran71

the crucial

question that came up for the consideration was whether any proceeding could

be initiated against the petitioners - minor boy and his sister, who were

admitted to the benefit of the Partnership Firm run by their parents. The

70

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2003-(109)-CRLJ -4660 -MAD

174

respondent initiated such proceeding under section 138 to 142 of the

Negotiable Act for dishonour of cheque issued by the Firm by way of security.

Keeping the fact in view that both petitioners being minor at the time of the

alleged commission of the offence, i.e., dishonour of cheque, petition calling

for quashing of the proceedings against the petitioners was allowed. The Court

held that “at the time of tiling of the complaint, petitioners were minors and

therefore, they are entitled to the benefit of the provisions of the Juvenile

Justice (Care and Protection of Children) Act,2000 particularly, section 17 of

the said Act, under which any proceeding initiated under Chapter VIII of the

Code of Criminal Procedure is not competent against a juvenile and no joint

proceeding of a juvenile could be held nor any juvenile could be charged with

or tried for an offence together with a person who is not a juvenile. If a

juvenile is accused of any offence, committed under Section 223 of the Code

of Criminal Procedure or any other law for the time being in force, but for the

prohibition contained in subsection (1), such juvenile and any person who is

not a juvenile, are charged and tried together, the Board taking cognizance of

that offence shall direct separate trials of the juvenile and the other person.

Under section I4l (1) of the Negotiable Instruments Act, if the persons

committing an offence under Section 138 is a company, every person who, at

the time when the offence was committed, was in charge of and was

responsible to the company for the conduct of the business of the company,

shall be deemed to be guilty of the offence and shall be liable to be proceeded

against and punished. The first petitioner is aged about 19 and is a school

going girl and though the liability attributed to her is a continuing liability.

Right from the time when the parties had transaction, the first petitioner

cannot also be reasonably construed to be liable since no valid materials have

been plated before this Court in proof of the requirement of the complaint that

she was either in charge of or responsible to the company for the conduct of

the business of the company and therefore, she cannot be deemed to be guilty

of the offence and is not liable to be proceeded against and punished in

175

accordance with the provisions of the N.I. Act, particularly within the meaning

of Section 141(l) of the N.I. Act. Therefore, the petitioners are not liable to

be prosecuted nor punished in accordance with the provisions of the N.I. Act,

much less under Sections 138 to 142 of the said Act, particularly in view of

the admitted fact that both the petitioners were minors at the time of the

alleged commission of the offence”. The Court laid down that under sections

17 and 18 of the Juvenile Justice (Care and Protection of Children) Act, 2000,

“no juvenile could either be proceeded against in accordance with the

procedures established by the Code of Criminal Procedure nor have the Courts

any competence to conduct any proceeding against the juveniles along with

non-Juveniles”.

Similarly, in Daljit Singh vs. State of Panjab72

, it was held that “Juvenile

Justice Act, 1986 is a complete Code in itself and has sweepingly overriding

effect on any other enactment of the State Legislature or Parliament viz, the

Cr. P.C. regarding inquiry/ proceedings or a trial against a delinquent juvenile

on any criminal charge.”

In Padmabari Dei vs. District Magistrate, Cuttack73

, the Orissa High Court

observed that Section 3 of the National Security Act, 1980, is the substantive

and enabling provision for passing detention order. It refers to the terminology

'any person'. Section 2(d) defines the word 'person' which includes a foreigner

also. In the absence of any exception, a juvenile also a person within the

meaning of National Security Act. Definition of the term 'person' as contained

in Section 3(42) of the general Clauses act also does not support the case of

the petitioner which defines the term 'person' as 'including any company or

association or body of individuals whether incorporated or not'. There is no

justification whatsoever to restrict the meaning of the term 'person' to a major

or a non-juvenile. The primary purpose and object of the National Security

72

1992 Cri.L.J 1051 73

1995 (3) CRIMES 156 (Ori)

176

Act is to apprehend certain variety of anti-social and subversive elements to

insure that by their activities larger interests of the citizens and society are not

imperiled. It is not meant to punish a man for having done something criminal

in the past- Keeping the above object of` the National Security Act in view,

there is no reason to restrict its operation only to a major. Such an

interpretation has the potentiality of defeating the object of the national

Security Act. Therefore, any person, whether he is major or juvenile, would

come within the net of the National Security Act, once the subjective

satisfaction about the prejudicial activities referred to in Section 3, thereof is

properly reached.

In case of Ramachandran vs. The Inspector of Police, Madras74

, it has been

held by the Madras High Court that a child below sixteen years cannot be

termed as „goonda‟ within definition of S.2(h) of Tamil Nadu Prevention of

Dangerous Activities of Boot-leggers, Drug offenders, Forest Offenders,

Goondas, lmmoral Traffic Offenders and Slum Grabbers Act, 1982 and

therefore, his detention under that Act would be unjustified. If a child is

detained as a goonda he is exposed to every such thing which Juvenile

Justice Act,1986 says he should not be exposed to, if he is branded as a

goonda in the sense that he has habitually committed or attempted to commit

or abetted the commission of offences punishable under Chapter 16 or Chapter

17 or Chapter 22 of the Indian Penal Code, a habit, he can form only if after

the commission of the first offence by him, he is not put to the care of a parent

or home, as the Juvenile Justice Act has contemplated to protect him from

evils. Since a juvenile is always in a special custody and that custody is

deliberately chosen by the Juvenile Justice Act, it is difficult to think that his

delinquency will make him a habitual offender and a goonda in that sense.

Authorities to be engaged in anti-social activities, it cannot be said that no

action should be taken against them, there should be more prompt action than

74

1994 CRI. L.J. 3722

177

in the case of a juvenile. He should be taken to proper custody under Juvenile

Justice Act, the detaining Authorities shall have the freedom to create a special

home for juvenile delinquents and juvenile delinquents can be detained in such

homes.

In Antaryami Patra vs. State of Orissa,75

case the decision was overruled

because of decision of The Supreme Court in Raj Singh v. State of Haryana,76

where the conviction the Supreme Court set aside the conviction and sentence

imposed upon the appellant and directed that the appellant should be dealt

with in accordance with the provisions of the Juvenile Justice Act 1986.

In Jagadish Bhuyan vs. State of Assam,77

it was held that although both the

Juvenile Justice Act 1986 and TADA Act are special Acts, section 25 of the

TADA Act contains a non-obstante clause with a view to give TADA Act in

case of conflict, an overriding effect over the provisions in any enactment. The

Court reasoned that under the TADA Act, the terrorism has been treated as a

special criminal problem, that the Act creates a new class of offences called

Terrorist Act and Disruptive Activities which are too he tried exclusively by a

special Court called Designated Court by providing special procedure for trial

of such offences, and that when the language of section 25 of the TADA Act is

so clear, it cannot be said that TADA Act cannot overrode the Juvenile Justice

Act.

In Sher Zamir vs. State of Madhya Pradesh,78

the applicant was prosecuted

under the NDPS Act in the Court of Special Judge (NDPS Act), Mandsaur. He

filed application stating that on the date of incident i.e., 31.5.99, he was below

18 year of age and therefore, he should he tried by the juvenile court. The

Special Judge (NDPS Act) Mandsaur held that charge-sheet was filed on ll-8-

99 and on that day the applicant was above l8 years of age, and therefore, he

75

1993 CRI L J 1908 76

MANU/SC/1380/1999 77

1992 CR1.L.J. 3194 78

2005(l) MP HT73

178

would not fall within the definition of juvenile. On this analogy, the Special

Judge dismissed the application. The applicant there upon filed revision in the

Madhya Pradesh High Court. Finding no substance in the revision tiled by the

applicant and it was dismissed. The Applicant was denied the benefit of the

J.J. (C&P) Act, 2000 because:

i. The incident had occurred on 31.5.1999, the applicant was arrested on

31.5.1999 and he was produced before the competent authority on

1.6.1999. On 1.6.1999 the applicant was above 16 years of age

according to his own school certificate and on that day the Act of 2000

did not come into force and the case of the applicant had to be dealt

under Juvenile Justice Act, 1986, which prescribes the age of juvenile

as 16 years.

ii. On 1.1.2001, the date of coming in to force of the Act of 2000, the

applicant was above 19 years. Therefore, on that day also, he was not

juvenile under the new J.J. (C&P) Act, 2000.

iii. Section 20 deals with the pending cases when the Act of 2000 came

into force. On that the applicant was above eighteen years of age and

therefore not eligible to get benefit of Section 20 of the Act, 2000.

Hon‟ble Supreme Court and various High courts have given authoritative

powers to the Juvenile Justice Board to deal with a juvenile charged with

commission of an offence. JJ Board has full jurisdiction to hold an enquiry

regarding the juvenile in conflict with law considering the provisions of

Juvenile Justice (Care and Protection of Children) Act, 2000. To ensure

complete segregation of the juveniles in conflict with law from adult

offenders, a joint trial of a juvenile should be prohibited with any other adult

offender even at the enquiry/trial stage. Now the Courts of Judicial

Magistrates, Executive Magistrates and also the High Court can decide the

question of juvenility during the proceedings of criminal jurisdiction.

However, once a person is declared to be juvenile then further proceedings

179

with regard to him in conflict with law are to be held by the Juvenile Justice

Board only.

7.2.3 Apprehension and Production of Juvenile

Keeping in mind the sensitivity of the issue of juvenile‟s apprehension and

detention; Juvenile Justice (C & P) Act 2015 has defined and imposed special

duties on the police. The following duties have been imposed on police by the

Act which are as follows.

i. When a „Juvenile in conflict with law‟ is detained by Police he shall be

put under the custody of the Special Juvenile Police Unit or the

designated Police Officer and within 24 hours the juvenile shall be

produced before the concerned Court.

ii. In every Police Station a Nodal Officer shall also appointed for

attending the calls from 'Woman & Child Helpline” and for

investigating cases relating to Child abuse. The „Woman & Child

Helpline‟ telephone number is 1091 (toll free). This telephone number

should be displayed on the Notice Board of all Police Stations.

iii. It is the duty of SHOs to ensure that only the designated officers

personally shall attend the cases involving child victims.

iv. Juvenile, who is arrested or in custody and is not released on bail by

Police Officer, shall be kept only in observation home until he can be

brought before a Board/Court.

v. Officer-In-charge of Police Station after arrest of a Juvenile shall

inform parent or guardian of the Juvenile and direct him to be present

at the board. Officer-in-charge of Police Stations shall inform

Probation Officer of such arrest to enable him to obtain information

regarding antecedents and family background of the juvenile.79

79

http:// chandigarhpolice.nic.in/juvenile.htm

180

In State of Bihar vs. Kapil Singh80

, as per fact, a girl child namely Manti was

taken to the police station to get information from her about the names of the

offenders who had committed the murder in her presence. Manti was kept at

the Police Station and was repeatedly questioned. At about midnight, she is

alleged to have disclosed the names of the three culprits. Subsequently, Manti

and her mother were both produced before a Magistrate who recorded their

statements under Section 164, Criminal Procedure Code. Manti was allowed to

go home after her statement had been recorded by the Magistrate. The

Additional Sessions Judge accepted as true the evidence of Manti. He held that

“there was corroboration of her evidence with respect to at least two of the

persons. Consequently, he convicted all the three persons for the offence under

Section 302 IPC.” All the three persons were sentenced to imprisonment for

life for this offence. The three convicted persons appealed to the High Court at

Patna. The Bench held that it was not safe to base any conviction on the

solitary testimony of Manti and, consequently, they gave Kapil Singh benefit

of doubt, set aside his conviction and sentences, and acquitted him. This

criminal appeal was brought by special leave by the State of Bihar against the

acquittal of Kapil Singh. The crucial question to be determined was whether

the evidence of Manti can be relied upon for the purpose of convicting Kapil

Singh.

The Court held that “there is always the danger in accepting the evidence of a

witness if she is under some influence, or if she is coached to give out a

version by persons who may have influence on her. In this case the court

found the circumstances making her evidence unsafe. The court found police

was keeping this girl confined in the police station for many days. In the day-

time, she was allowed to come up to the door of the room, but was not allowed

to move away from the door. Each night she was shut inside the room and was

kept shut like that for five or six nights. Her mother was allowed only to visit

80

(1968) 3 SCR 810

181

her. The court expressed displeasure and surprise at this illegal confinement by

the police and held it to be against law and therefore rejected her testimony”.

In case of Munna and others v. State of Uttar Pradesh and others81

a news

report was published in the Indian Express newspaper dated December, 2,

1981 alleging that certain juvenile under-trial prisoners in the Kanpur Central

Jail, are kept in the jail instead of sending them to children's home and they

were being sexually exploited by the adult prisoners. One young boy named

Munna was in agony because of his sexual use by the adult prisoners over

there and his condition was such that he could not even sit. Three writ

petitions were filed based on this news report in the Supreme Court and one

writ petition was filed by the Human Right Organization in the High Court of

Allahabad- seeking relief in respect of these juvenile under trial prisoners. The

High Court of Allahabad ordered “the Session Judge of Kanpur to visit

Kanpur Central Jail to investigate the whole matter. But Kanpur Central Jail

authorities within few days of publishing of news report and subsequent filing

of writ petitions transferred most of the under-trial prisoners to the Children's

Home, Kanpur on different dates and therefore when the Sessions Judge

visited the jail, he could not interview any of them.

The Supreme Court while disposing of three writ petition filed under Article

32, arising out of same facts, relied on the report made by the Session Judge to

the High Court of Allahabad. The Supreme Court took note of the fact that

when Sessions Judge went to Kanpur Central Jail, six juvenile were shifted to

children‟s home just before his visit. The court directed the secretary of the

U.P State Board of Legal aid and Advice, to immediately contact these six

children/juvenile after finding out their addresses either from the court

proceedings or from the jail records and take their statements with a view to

ascertaining what was the treatment meted out to them in the Kanpur Central

Jail and whether any of them was maltreated or sexually exploited?

81

(1982) 1 SCC 545

182

It was observed by the court that Juvenile delinquency is, by and large, a

product of social and economic inequalities. Even if it is found that these

juveniles have committed any offences, they cannot be allowed to be

maltreated. They do not shed their fundamental rights when they enter the jail.

Moreover, the object of punishing being reformation, we fail to see what

social objective can be gained by sending juveniles to jails where they would

come into contact with hardened criminals and lose whatever sensitivity they

may have to finer and nobler sentiments. That is the reason why Children Acts

are enacted by the Uttar Pradesh Children Act, 1951. It is absolutely essential

in order to implement the provisions of the Uttar Pradesh Children Act, 1951

that children's homes or other suitable places of safety are set up by the

Government for the purposes of providing a place of detention for children

under the age of 16 years. No words we can use would be strong enough to

convey our feelings in this respect. A nation which is not concerned with the

welfare of its children cannot look forward to a bright future.

In Sheela Barse and anr. (I) vs. Union of India82

petitioner under Article 32 of

the Constitution asked the Supreme Court to ensure the release of children

below age of 18 years those who detained in jails within different states of the

country, production of complete information of children in jails, information

as to the existence of juvenile courts, homes, schools and for a direction that

the District Judges should visit jails or sub-jails within their jurisdiction to

ensure that children are properly looked after when in custody as also for a

direction to the State Legal Aid Boards to appoint duty counsel to ensure

availability of legal protection for children as and when they are involved in

criminal cases and are proceeded against.

The Supreme Court then directed the District Judges in the country to

nominate the Chief Judicial Magistrate or any other judicial magistrate to visit

the District Jail and sub-jails in their districts for the purpose of ascertaining

how many children below the age of 16 years are confined in jail, what are the

82

1986 (3) SCC 596

183

offences in respect of which they are charged, how many of them have been in

detention, whether they have been produced before the children's court or not

and, if so, when and how many times and whether any legal assistance is

provided to them. It was directed that this report should also state as to

whether there are any children's homes, remand homes, or observation homes

for children within their district and, if here are, he will inspect such children's

homes, remand homes or observation homes for the purpose of ascertaining as

to what are their conditions in which children are kept and what kind of

facilities are provided there. District Judges were directed to submit the

complete reports through Registrars of respective High courts or to the

Registrar of the Supreme Court.

Therefore, the Supreme Court directing the Registrar of all the High Courts to

ensure compliance with its order. The court made following observations:

i. It is an elementary requirement of any civilized society and it has been

so provided in various statutes concerning children that children should

not be confined to jail because incarceration in jail has a dehumanizing

effect and it is harmful to the growth and development of children. But

even so the facts placed before us, which include the survey made by

the Home Ministry and Social Welfare Department shows that a large

number of children below the age of 16 years are confined in jails in

various parts of the country. Article 39 (f) of the Constitution provides

that the State shall direct its policy towards securing that children are

given opportunities and facilities to develop in a healthy manner and in

conditions of freedom and dignity and that childhood and youth are

protected against exploitation and against moral and material

abandonment.

ii. If a child is National asset, it is the duty of the State to look after the

child with a view to ensuring full development of its personality. That

is why all the statues dealing with children provide that a child shall

not be kept in jail. Even apart from this statutory prescription, it is

184

elementary that a jail is hardly a place where a child should be kept.

There can be no doubt that incarceration in jail would have the effect

of dwarfing the developing of the child, exposing him to baneful

influences, coarsening his conscience and alienating him from the

society. It is a matter of regret that despite statutory provisions and

frequent exhortations by social scientists, there is still large number of

children in different jails in the country as is now evident from the

reports of the survey made by the District Judges pursuant to our order

dated 15th

April, 1986. Even where children are accused of offences,

they must not be kept in jails. It is no answer on the part of the State to

say that it has not got enough number of remand homes or observation

homes or other place where children can be kept and that is why they

are lodged in jails. It is also no answer on the part of the State to urge

that the ward in the jail where the children are kept is separate from the

ward in which the other prisoners are detained. It is the atmosphere of

the jail which has a highly injurious effect on the mind of the child,

estranging him from the society and breeding in him aversion

bordering on hatred against a system which keeps him in jail. We

should therefore like once again to impress upon the State Government

that they must set up necessary remand homes and observation homes

where children accused of an offence can be lodged pending

investigation and trial. On no account should the children be kept in

jail and if a State Government has not got sufficient accommodation in

its remand homes or observation homes, the children should be

released on bail instead of being subjected to incarceration in jail.

iii. The problem of detention of children accused of an offence would

become much more easy of solution if the investigation by the police

and the trial by the Magistrate could be expedited. The report of

survey, made by District Judges shows that in some places children

have been in jail for quite long periods. We fail to see why

185

investigation into offences alleged to have been committed by children

cannot be completed quickly and equally, why the trial can not take

place within a reasonable time after the filing of the charge-sheet.

Really speaking, the trial of children must take place in the Juvenile

Courts and not in the regular Criminal Courts. There are special

provisions enacted in various statutes relating to children providing for

trial by Juvenile Courts in accordance with a special procedure

intended to safeguard the interest and welfare of children, but, we find

that in many of the States there are no Juvenile Courts functioning at

all and even where there are Juvenile Courts, they are nothing but a

replica of the ordinary Criminal Courts, only the label being changed.

The same Magistrate who sits in the ordinary Criminal Court goes and

sits in the Juvenile Court and mechanically tries cases against children.

It is absolutely essential, and this is something which we wish to

impress upon the State Government with all the earnestness at our

command that they must set up Juvenile Courts one in each district,

and there must be a special cadre of Magistrates who must be suitably

trained for dealing with cases against children. They may also do other

criminal work, if the work of the Juvenile Court is not sufficient to

engage them fully, but they must have proper and adequate training for

dealing with cases against juveniles, because these cases require a

different type of procedure and juveniles, because these cases require a

different type of procedure and qualitatively a different kind of

approach.

iv. Where a complaint is filed or first information report is lodged against

a child below the age of 16 years for an offence punishable with

imprisonment of not more than 7 years, the investigation shall be

completed within a period of three months from the date of filing of

the complaint or lodging of the First Information Report and if the

investigation if not completed within this time, the case against the

186

child must be treated as closed. If within three months, the chargesheet

is fled against the child in case of an offence punishable with

imprisonment of not more than 7 years, the case must be tried and

disposed of within a further period of 6 months at the outside and this

period should be inclusive of the time taken up in committal

proceedings, if any.

v. Moreover, it is not enough merely to have legislation on the subject,

but it is equally, if not more, important to ensure that such legislation is

implemented in all earnestness and mere lip sympathy is not paid to

such legislation and justification for non-implementation is not pleaded

on ground of lack of finances on the part of the state. The greatest

recompense which the state can get for expenditure on children is the

building up of a powerful human resource ready to take its place in the

forward march of the Nation.

In Sheela Barse (II) and others vs. Union of India and Others83

this case was

follow up of its earlier order made by the court which was not abided by

District judges. The court directed that :

i. The trial of children must take place only in the juvenile courts and not

in the regular criminal courts.

ii. It would be desirable if the Central Government initiates

Parliamentary legislation on the subject, so that there is complete

uniformity in regard to the various provisions relating to children in the

entire territory of the country. The Children's Act which may be

enacted by Parliament should contain not only provisions for

investigation and trial of offences against children below the age of 16

years but should also contain Mandatory provisions for ensuring social,

economic and psychological rehabilitation of the children who are

either accused of offences or are abandoned or destitute or lost.

Moreover, it is not enough merely to have legislation on the subject,

83

(1998) 3 SCC 632

187

but it is equally important to ensure that such legislation is

implemented in all earnestness and mere lip sympathy is not paid to

such legislation and justification for non-implementation is not placed

on ground of lack of finances on the part of the state.

In Supreme Court Legal Aid Committee vs. Union of India and others84

which was follow up of SheelaBarse (I), the court took note of the fact that

Juvenile Justice Act had come into force. Every District judge was therefore

directed to report to the Registry of the Supreme Court as to how many

juvenile homes, special homes, and observation homes have been set up as

required under section 9, 10 and 11 of the Juvenile Justice Act, 1986. The

court also took note of the fact that the number of children in regular jails was

the highest in West Bengal and Bihar.

In case of Master Rajeev Shankar Lal Parmar & another vs. Officer-incharge,

Police Station, Malad and Others,85

first Information Report was filed against

petitioner on 25th May, 2002 for offences punishable under Sections 302 and

307 of the Indian Penal Code. On 19th July, 2002, charge-sheet was submitted

before the Additional Chief Metropolitan Magistrate, 24th Court at Borivali,

Mumbai. In view of the fact that the allegations were in respect of the

commission of offences punishable under Sections 302 and 307, the case was

committed to the Sessions Court on 2nd August, 2002. Though petitioner

accused had stated his age as to be 22 years and accordingly arrested and kept

as an under trial prisoner, the Sessions Judge held that he appeared to be

„much more younger than 22 years‟ and accordingly, an order was passed to

remanding the accused to the Juvenile Justice Board and by an order dated 7th

May, 2003. The application was allowed. The Sessions Judge observed that

petitioner accused was born on January 8, 1986. Thus, he was a Juvenile under

13 years of age on the date of the incident. He was, therefore, ordered to be

transferred to Juvenile Court for consideration of his case by Juvenile Justice

84

(1989) 2 SCC 325 85

2003-(109) CRLJ - 4522-BOM

188

Board constituted under the Juvenile Justice (Care and Protection of Children)

Act, 2000. The petitioner accused approached the - High Court as in spite of

the direction of the Additional Sessions Judge, the petitioner was neither kept

in Observation Home, nor his case was placed before Juvenile Justice Board

asking for following:

a to declare the First Petitioner's confinement in Mumbai Central Prison

at Arthur Road unlawful and in violation of the Juvenile Justice (Care

and Protection of Children) Act, 2000 and the Constitution of India.

b to direct the Respondent to produce the first Petitioner before the

Juvenile Justice Board forthwith;

c to order and direct that the first Petitioner be shift from the Mumbai

Central Prison at Arthur Road to the Observation Home at Umerkhadi;

d to expedite the inquiry of the first Petitioner before the Juvenile Justice

Board so as to complete it within 2 months of the First Petitioner's first

production.

e to grant compensation of Rs. 1,00,000 (Rupees One lakh only) to the

first Petitioner for his illegal detention in the police lock up and jail for

l0 months from the date of arrest on 21-5-2003 to 7-3-2003;

f to grant compensation of Rs. 30,000/- (Rupees thirty thousand only)

for the First Petitioners illegal detention in Mumbai Central Prison

after his having been declared a Juvenile by the Sessions Court in

Sessions Case on 7.3.2003 (756 of 02);

g And to order and direct that it is mandatory for arresting by police

personnel:-

i. to ask the arrestee his age at the time of arrest.

ii. to forward and file the cases of those arrestees claiming to be

under 18 years of age before the Juvenile Justice Board.

iii. to include in the Arrest Panchanama that the arrestee was asked

his age at the time of arrest and has stated his age as being "X"

number of years;

189

iv. to order and direct that the non-compliance by police personnel

of the procedure laid down under prayer.

h Above treated as misconduct and a departmental inquiry be initiated

against such police personal;

i. to direct the Registrar, Appellate (Criminal) Side, High Court

Bombay, to issue a notification directing the Magistrates to ask

each accused his age at first production stage and record the

same in the records.

ii. to conduct an inquiry with regard to determination of age of an

accused when he claims to be under 21 years of age.

iii. to give the accused an opportunity to produce documentary

evidence with regards to age, and only in absence of such

evidence medical examination to be ordered.

iv. to forthwith transfer an accused found to be under 18 years of

age to the observation Home and his case to the Juvenile

Justice Board along with the findings of the inquiry;

I. For such further and other orders and reliefs as the nature and

circumstances of the case may require.

On June 11, 2003, when the matter was placed before the High Court, the

High Court directed the respondents to take immediate steps to shift petitioner

to Observation Home at Umerkhadi. The High Court also directed the

authorities to produce the petitioner before the Juvenile Justice Board on 16th

June, 2003. On July 2, 2003, the High Court noted that the directions issued by

it on June 11, 2003 were complied with. The petitioner was shifted to

Observation Home. He was also produced before the Juvenile Justice Board.

Regarding other prayers of payment of compensation as also issuing general

directions, the State prayed for time contending that the order passed by the

Sessions Judge was not in accordance with law. The High Court granted time

as prayed by the State. In the meanwhile, the State authorities challenged the

190

order of the Additional Sessions Judge, Greater Mumbai, which was

dismissed.

Regarding compensation to petitioner it was observed that “the order was

passed by the Additional Sessions Judge on 7th March, 2003 which was

received by the Thane Jail Authorities on the same day. This order could not

be implemented and the petitioner could not be shifted to the Observation

Home nor could he produce before the Juvenile Justice Board because of non

availability of police escort. Hence, without there being any fault on the part

of the accused, he was kept in prison, firstly at Thane and then in Mumbai.

Thus, there was a gap of more than three months in carrying out the order

passed by the Additional Sessions Judge. The order dated 7th

March, 2003 was

implemented and effected only on 13th

June, 2003. Therefore, respondents

were ordered to pay to petitioner an amount of compensation of Rs. 15,000.”

In case of R.D. Upadhyay v. State of A.P. and Ors.86

The National Institute of

Criminology and Forensic Sciences conducted a research study of children of

women prisoners in Indian jails. The salient features of the study brought to

the notice of all Governments in February 2002, were:

i. that most of these children were living in difficult conditions and

suffering from diverse deprivations relating to food, healthcare,

accommodation, education, recreation, etc.;

ii. no appropriate programmes were found to be in place in any jail, for

their proper bio-psycho-social development. Their looking after was

mostly left to their mothers. No trained staff was found in any jail to

take care of these children;

iii. in many jails, women inmates with children were not given any

special or extra meals;

iv. no separate or specialised medical facilities for children were available

in jail;

86

20D6(3) ALD 42(SC)

191

v. no prison office was deployed on the exclusive duty of looking after

these children or their mothers. They had to perform this duty

alongside many other duties including administrative work, discipline

maintenance, security-related jobs etc. None of them was reported to

have undergone any special training in looking after the children in

jails. Appeals were filed in the Supreme Court to draw the attention

of the Court to the plight of little children on account of the arrest of

their mothers for certain criminal offences.

The Court made following important observations:

i Child without their own wrong has to reside in jail with their mothers.

In some cases, it may be because of the tender age of the child, while

in other cases, it may be because there is no one at home to look after

them or to take care of them in absence of the mother. The jail

environment is certainly not congenial for development of the children.

ii Special provisions are made for the proper care, welfare and

development of the children, in Part III and IV of the Constitution of

India, besides other provisions in these parts which are also significant.

The best interest of the child has been regarded as a primary

consideration in our Constitution.

iii Article- 15, 21-A, 14, 23, 39(e), 39(f), 42, 45, 46, 47 are children

friendly laws. Article 42 provides that the State shall make provision

for securing just and humane conditions of work and maternity relief.

Article 45 stipulates that the State shall endeavour to provide early

childhood care and education for all children until they complete the

age of six years. Article 46 provides that the State shall promote with

special care the educational and economic interests of the weaker

sections of the people, and, in particular, of the Scheduled Castes and

the Scheduled Tribes, and shall protect them from social injustice and

all forms of exploitation. Article 47 provides that the State shall regard

192

the raising of the level of nutrition and the standard of living of its

people and the improvement of public health as among its primary

duties and, in particular, the State shall endeavour to bring about

prohibition of the consumption except for medicinal purposes of

intoxicating drinks and of drugs which are injurious to health.

iv Apart from the aforesaid constitutional provisions, there are wide range

of existing laws on the issues concerning children, such as, the

Guardians and Wards Act -1890, Child Marriage Restraint Act, 1929,

the Factories Act, 1948, Hindu Adoptions and Maintenance Act 1956,

Probation of Offenders Act 1958, Orphanages and Other Charitable

Homes (Supervision and Control) Act 1960, the Child Labour

(Prohibition and Regulation) Act 1986, Juvenile Justice (Care and

Protection of Children) Act 2000, the Infant Milk Substitutes, Infant

Foods and Feeding Bottels, (Regulation of Production, Supply and

Distribution) Act, 1992, Pre-natal Diagnostic Techniques (Regulation

and Prevention of Misuse) Act, 1994, Persons with Disabilities (Equal

Opportunities, Protection of Rights and Full Participation) Act, 1995,

immoral Traffic (Prevention) Act, 1986.

v The Juvenile Justice (C&P) Act, 2015 replaced The Juvenile Justice

(C&P) Act, 2000 to comply with the provisions of the Convention on

the rights of the child. In addition to above, the national policy for

children was adopted on 22nd August, 1974. This policy, inter alia,

lays down that State shall provide adequate services for children both

before and after birth, and during the growing stages for their full

physical, mental and social development.

The Apex Court issued the following guidelines:

1. A child shall not be treated as an under-trial while in jail with his/her

mother. Such a child is entitled for education, medical facilities,

recreation facilities, food, shelter and clothing as a matter of his right.

193

2. Pregnancy:

i. Before sending a woman who is pregnant to a jail, the

concerned authorities must ensure that jail in question has the

basic minimum facilities for child delivery as well as for

providing pre-natal and post-natal care for both, the mother

and the child.

ii. When a woman prisoner is found or suspected to be pregnant

at the time of her admission or at any time thereafter, the lady

Medical Officer shall report the fact to the superintendent. As

soon as possible, arrangement shall be made to get such

prisoner medically examined at the female wing of the District

Government Hospital for ascertaining the state of her health,

pregnancy, duration of pregnancy, probable date of delivery

and so on. After ascertaining the necessary particulars, a report

shall be sent to the Inspector General of Prisons, stating the

date of admission, terms of sentence, date of release, duration

of pregnancy, possible date of delivery and so on.

iii. Gynaecological examination of female prisoners shall be

performed in the District Government Hospital. Proper pre-

natal and post-natal care shall be provided to the prisoner as

per medical advice.

3. Child birth in prison:

i. In case of an expectant prisoner either arrangements should be

made for her parole or sentence should be suspended in case

of minor offences so that her delivery can be made outside the

prison. This facility can be denied only in high security risk

cases.

194

ii. If a child is born in prison then they shall be registered in the

birth registration office but it should not be recorded in their

birth certificate that the child is born in prison.

4. Female prisoners and their children:

i. Female prisoners having children less than the age of six years

shall be allowed to keep their children with them till they have

attain age of six years.

ii. Such children shall be given to a protective custodian until

their mother is released or the child attains such age that

he/she can earn their own livelihood.

iii. If a female prisoner dies and leaves behind a child, the

Superintendent shall inform the concerned District Magistrate

so that he can arrange for the proper care of the child. If the

concerned relative(s) are not in a stage to support the child

then the District Magistrate can either hand over the child to a

responsible citizen who can guarantee proper care and

maintenance of the child or the child can be placed in an

institution run by the government.

5. Food, clothing, medical care and shelter:

i. The State/U.T. Government shall ensure that children in jail

are provided with adequate clothing according to the

prevailing climatic conditions.

ii. Growing children shall be provided with proper diet schedule

keeping in view their caloric requirements.

iii. Proper arrangement should be made in all jails to take care of

the nutritional needs of children.

iv. There should be separate utensils for each mother prisoner for

using to feed her child and they should be of suitable material.

195

v. Clean water should be provided to the child and it must be

periodically checked whether it is safe for drinking or not.

vi. Children shall be regularly examined to observe their proper

growth and development and shall also ensure that they

receive timely vaccination. Medical officer can also provide

extra clothing and diet as per needs.

vii. Alternative arrangements should be made for looking after

any children if her mother falls ill and is not able to take care

of her child.

6. Education and recreation for children of female prisoners:

i. The child of female prisoners shall be kept in crunch, while

their mothers are at work in jail and provide then proper

education and other recreational opportunities.

ii. There shall be a crèche and play school open for child of

women prisoners. The crèche and play school shall be open

outside the prison premises.

7. In many states, the jails are not providing proper facilities for small

children who are living with women prisoners. It is the duty of state to

ensure the proper care and protection to the children for their proper

biological, psychological and social growth.

8. It must be the priority of the state to keep the children away from the

environment such as crowded jail rooms, hard core criminals, violent

criminal etc, which is harmful for their growth.

9. Diet: Dietary scale prepared by Dr. A.M. Dwarkadas Motiwala, MD

(Paediatrics) for institutaionlized children has been submitted by Mr.

Sanjay Parikh which recommends exclusive breastfeeding on the

demand of the baby. And if for any reason, the mother is not able to

feed the baby then authorities must provide undiluted fresh milk to the

baby.

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10. Programmes and Schemes which are necessary for the development

and welfare of children should be implementing with dog spirit. It is

necessary for the better future of these children.

11. The District Legal Services Authorities and any other competent

authority must inspect jails timely to monitor the necessary facilities

given to mother and child and also take necessary steps to implement

the directions regarding children and mother given by the state

government.

12. The Courts directed to give priority to such cases and decide their

cases expeditiously.

The Juvenile Justice (Care and Protection of Children) Act, 2000 and 2015 has

taken care of the issue of apprehension and detention of a juvenile by the

police. When any delinquent juvenile arrested or apprehended, must be placed

under the custody of special police unit or under the designated officers.

According to various judgments of the Apex Court which have emphasized

that “it is duty of the State to ensure for development of child that is why the

law dealing with the children provide that they shall not be kept in jail”. But

despite of these guidelines the juvenile still being detained by the police in the

police station on account of lack of concern, knowledge and lack of

sensitization in the police department towards the delinquent children.

However, the provisions made by Juvenile Justice (Care and Protection of

Children) Act, 2000 and 2015 providing for special police units etc. is a

welcome enactment.

7.2.4 Bail to Juvenile

Section 12 of Juvenile Justice (C&P) Act, 2015 provides for bail to all

person/juvenile/children who are apprehended and detained of the offence

being bailable or non-bailable. It reads as under :-

Section.12(1) “When any person, who is apparently a child and is alleged to

have committed a bailable or non-bailable offence, is apprehended or detained

197

by the police or appears or brought before a Board, such person shall,

notwithstanding anything contained in the Code of Criminal Procedure, 1973

or in any other law for the time being in force, be released on bail with or

without surety but he shall not be so released if there is appear reasonable

ground for believing that the release is likely to bring him into association

with any known criminal or exposed him to moral, physical or phychological

danger or that his release would defeat the end of justice”.

Section.12(2) “When such person having been apprehended is not

released on bail under Sub-section (1) by the officer in charge of the

police station, such officer shall cause the person to be kept only in an

observation home in the such manner as may be prescribed until the

person can be brought before a Board”.

Section.12(3) “When such person is not released on bail under Sub-

section (1) by the Board, it make an order sending him to an observation

home or a place of safety, as the case may be, for such period during the

pendency of the inquiry regarding the person, as may be specified in

order”.

Section.12(4) “when a child in conflict with law is unable to fulfil the

conditions of bail order within seven days of the bail order, such child

shall be produced before the Board for modification of the condition of

bail”.

It has been mentioned in the Act that “Bail and not the jail is a rule”, and the

Board and court should be liberal in granting the bail to the juvenile produced

before them. The judicial trend can be examined in the cases given below.

In Brijesh Kumar vs. The State,87

the court held that the entries in the school

leaving certificate were rejected on the ground that parents understated the age

of the children at the time of admission to school. The Juvenile Court on the

87

98(2002) DLT 63

198

basis of the material on record appreciated the evidence and declined to accept

the evidence of the father of the petitioner claiming to be juvenile.

The high court also accepted the reasoning given by the juvenile court

regarding entries in the school leaving certificate. However, even though

petitioner was held not to be a juvenile, the court can released him on bail,

after observing that he was a young boy and can be easily influenced and if he

remains in the company of hard-core criminals in Jail, his entire life may be

spoiled. The petitioner was ordered to be released on bail on his furnishing

personal bond in the sum of Rs.10,000/- with one surety in the like amount to

the satisfaction of the trial Court.

In Md. Gazi Khan's case,88

Bail application was moved by the petitioner on

behalf of his son, Md. Gazi Khan, who was arrested under section 20(b) and

60(3) NDPS Act for having with him 106 Kgs of Ganja contained in 6 gunny

bags. The accused, Gazi Khan was a juvenile aged about 14 years old and he

was pursuing his studies in a local school. It was submitted that the accused

was arrested under section 20(b) of NDPS Act and the offence so committed

under that section does not come under the purview of Section 37(b) of the

said Act, and as such the accused is entitled to be released on bail. On the

other hand state contended that under the NDSP Act there is no provision for

asking relief as juvenile.

The court ordered that “the accused Md. Gazi Khan shall be released on bail

of Rs.10,000/- with one surety of the like amount to the satisfaction of the

learned Special Judge (NDPS) Manipur. It was further directed that accused,

after his release on bail, shall be put under the custody of his father, the

petitioner who shall produce the accused Md.Gazi Khan before the concerned

Investigation Officer as and when required.”

In Abhey Kumar Singh vs. State of Jharkhand and Ors89

in this writ

application, the petitioner prayed for quashing the entire criminal prosecution

88

Md.Alimuddin v. State of Manipur 2001-(107)-Cr.LJ-1140. 89

2004 CriLJ4533

199

pending in the Court of Addl. Chief Judicial Magistrate, Deoghar and also for

a direction of release of the petitioner forthwith from the Jail custody on the

ground that the petitioner is a juvenile and he is in custody since 6.11.2000

along with other criminals and the total period of detention i.e. 30 days in

remand home including three years eight months which is still continuing, in

total three years nine months. The petitioner submitted that in spite of

direction of the Court he was detained in custody under the Juvenile Justice

Act. The enquiry also could not be concluded but the substance of accusation

was explained on 16.9.2003. The petitioner submitted that he had remained in

custody for more than three years, hence he cannot be sentenced. The entire

criminal proceeding has become infructuous.

Considering the above fact and circumstances of the case, the petitioner was

released forthwith from custody without any bond or surety on the reasoning

that the inquiry proceeding under Juvenile Justice Act has to be concluded

within a period of three months from the date of receipt of a copy of this order,

failing which the Criminal Proceeding shall stood automatically quashed. It is

well settled that the Juvenile cannot be sentenced and the total period of

sentence is three years. In the present case the petitioner has already served the

detention period for more than three years eight months and is still in custody

without any special provisions in the custody under the Act.

In two decisions of the Supreme Court, namely, Rajinder Chandra vs. State of

Chhattisgarh and Anr.90

and Pratap Singh vs. State of Jharkhand and Anr.91

the

Court declared JJ (C&PC) Act, 2000 to be a beneficial legislation for the

benefit of the juvenile and the Act must be construed as such. In this line,

when Section 12 makes it mandatory for a juvenile, even if he is „apparently a

juvenile‟ to be released on bail, then this Court and all the courts dealing with

such a situation must give full meaning to the provisions of the said Section as

also the object of the Act. Bail has to be granted to a juvenile, notwithstanding

90

MANU/SC/0051/2002 91

JT 2005 (2) 271

200

anything contained in the Code of Criminal Procedure, 1973 or any other law

for the time being in force which includes the NDPS Act also except for the

conditions mentioned in Section 12 itself which, if one examines the same, are

also to prevent any damage to the juvenile. The idea behind Section 12 being

that the juvenile must be released on bail unless releasing him on bail would

be detrimental to him or would entirely defeat the ends of justice.

In Rakesh Kumar @ Sittu vs. State of Jharkhand92

revision application was

filed against the order of the 4th

Additional District and Session Judge,

Palamau at Daltonganj in Criminal Appeal, affirming the order passed by

Additional Chief Judicial Magistrate, Palamau at Dalonganj, whereby and

where under they refused to enlarge the petitioner on bail, who was accused in

connection with a case registered under Section 307 of the Indian Penal code

on the plea that if the petitioner is released on bail he may form his own

association of criminal or will become associate of other criminal gangs”. The

revision petitioner submitted that the person assigned by the appellate court

could not be a valid ground for refusing the prayer for bail. Revision Petition

Allowed.

In Devesh vs. The State (NCT of Delhi)93

, a criminal revision before Delhi

High Court decided on 12.5.2006, it was held that “it is apparent from a

reading of Section 12 that there must be a reasonable ground for believing that

the juvenile's release would bring him into association with 'known' criminals.

The Additional Sessions Judge has merely conjectured that the release of the

petitioner might bring him in contact with criminals not 'known criminals', on

the basis of an assumption that some of his companions have not been arrested

and those companions are criminals. This is not the right approach to take

while construing Section 12 of the JJ (C & PC) Act, 2000. When the

expression used is 'any known criminal' then the Court should give full

meaning to that expression. Even as per the case of the prosecution, neither

92

2006 (2) JCR130(Jhr) 93

CRL Rev. P.214/2006, Decided on :12.05.2006

201

did the juvenile commit the murder nor did he catch hold of the deceased nor

he was responsible for the injuries. The only injuries recorded in the

postmortem are knife injuries. Even otherwise the petitioner would be entitled

to bail although more so as he is a juvenile.

Accordingly, the order rejecting bail was set aside and the petitioner was

directed to be released on the petitioner's father furnishing an affidavit to the

fact that he shall take proper care of his son and that he shall not permit his

son to fall into any kind of bad company. This in addition to the condition that

petitioner shall be released on bail on his furnishing a personal bond in the

sum of Rs.10,000/- with one surety of the like amount to the satisfaction of the

Juvenile Justice Board.

In Ranjit Singh vs. State of H.P.94

the petitioner was arrested on 11th

September, 2004 for an offence punishable under Section 376 read with

Section 511 of the Indian Penal Code and Section 3 of the Scheduled Castes

and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The petitioner

applied for bail before the Juvenile Justice Board at Shimla. However, the

Principal Magistrate declined the bail on the grounds that release of the

accused juvenile on bail would defeat the ends of justice and also put him in

physical and psychological danger and that there would be a lot of resentment

amongst the people in the area which will have adverse psychological impact.

Therefore this appeal was filed.

The appeal was allowed. The Court below was directed “to release the

petitioner forthwith on furnishing bonds in the amount of Rs.5,000/- with one

surety of the like amount to the satisfaction of the Principal Magistrate,

Juvenile Justice Board, Shimla, subject to the condition that neither the

petitioner nor his parents would influence the witness or otherwise interest

with them”.

Section 12 of the Act stipulates that “a juvenile is entitled to release on bail

provided the release does not expose him to moral, physical or psychological

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2005 Cri L J 972

202

danger or his release may hot defeat the ends of justice. In reply, filed by the

prosecution, or in the police file, there is nothing to show that juvenile, if

released on bail, would be exposed to criminal or neither moral or physical or

psychological danger nor it can be said that his release will defeat the ends of

justice. The Principal Magistrate, Juvenile Justice Board, therefore erred in

staying that release of juvenile would put him to moral, physical and

psychological danger without there being any material on record”.

In Manmohan Singh vs. State of Punjab95

this petition was filed by juvenile

Manmohan Singh, who was confined in Observation Home, for setting aside

the order passed by the Chief Judicial Magistrate/ Juvenile court, Ludhiana.

The Courts below declined the Bail to the petitioner on the ground that firstly,

there is apprehension that the release of the petitioner on Bail would expose

him to moral and physical danger as no elderly person is available to look after

him. Secondly, the petitioner at the time of occurrence was armed with Kirpan

and had caused injuries to the deceased as a result of which he died. In these

circumstances, the release of the petitioner on bail would likely to harm the

trial as may pass coercion upon the prosecution witnesses. The petitioner

submitted that both the aforesaid reasons recorded by the Additional Sessions

Judge are unsustainable and on the basis of the same, the prayer of the

petitioner for release him on Bail cannot be rejected as it is Mandatory for the

Juvenile Court to release the juvenile on bail notwithstanding anything

contained in the Code of Criminal Procedure, 1973 or in any other law for the

time being in force. Petitioner further submitted that apprehension of the

Courts below to the effect that if the petitioner is released on Bail, he would

expose himself to moral and physical danger having no elderly person to look

after him, is wholly without any basis as the grandfather and maternal uncle of

the petitioner are always available at home to look after him. The respondent-

State opposed the prayer made by the petitioner by submitting that the

petitioner was rightly declined the Bail keeping in view the nature of crime he

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(2004) 136 PLR 497

203

has committed and the fact that in case of his release, there is apprehension of

his being exposed to moral and physical danger having no elderly person to

look after him.

The Criminal Revision was allowed and the impugned orders passed by the

Chief Judicial Magistrate/ Juvenile Court, Ludhiana and Additional Sessions

Judge, Ludhiana respectively, were set aside and the petitioner was ordered to

be released on Bail subject to the satisfaction of CJM Ludhiana. The Court

held that the orders passed by the Courts below are not sustainable in the eyes

of law. It was observed that from the bare reading of the Section 12, its clear

that it is mandatory for the Juvenile Court to release a juvenile on Bail with or

without surety if such a juvenile is arrested or detained or appears or is

brought before a Juvenile Board in a Bailable or non-Bailable offence,

notwithstanding anything contained in the Code of Criminal Procedure. The

only exception is that if there are reasonable grounds for believing that the

release of the juvenile is likely to bring him into association with any known

criminal or expose him to moral, physical or psychological danger or that his

release would defeat the ends of justice, then he shall not be released on Bail.

The reasonable grounds for believing that his release is likely to bring into

association with any known criminal or expose him to moral, physical or

psychological danger or that his release would defeat the ends of justice,

should be based upon some material/evidence available on the record. It is not

a matter of subjective satisfaction but while declining Bail to the juvenile on

the said ground, there must be objective assessment of the reasonable grounds

that the release of the juvenile is likely to bring him in association with any

known criminal or expose him to moral, physical or psychological danger or

that his release would defeat the ends of justice. In my opinion, under the

aforesaid Section, l the benefit of Bail cannot be denied to the juvenile on the

ground that he has committed murder by a sharp edged weapon by inflicting

injuries on the person of the deceased. There is only one exception as,

indicated above, but under the said exception also the release of the juvenile

204

on Bail can be denied if there is sufficient material on record which clearly

indicate that the release of the juvenile is likely to bring him into association

with bad company or that his release would defeat the ends of justice.

In the instant case, admittedly the petitioner is a juvenile. It is also undisputed

that the grandfather of the petitioner is available at home. In case the petitioner

is released on Bail, he can be looked after by his grandfather and the

observation of the Courts below that the release of the petitioner would lead to

moral and physical danger having no elderly person to look after him, is a

mere apprehension based on no material/evidence. Merely because the

petitioner is alleged to have caused injuries to the deceased by sharp edged

weapon, he cannot be denied the benefit of Bail under Section 12 of the Act,

as the provisions of this Section provide that every juvenile for whatever

offence he is charged with shall be released on bail except under the aforesaid

one circumstance, which in my opinion, is not existing in the instant case.

Rather by declining the Bail to the petitioner the very purpose of the Act will

be defeated. Thus, the impugned orders passed by both the Courts below are

not sustainable in the eyes of law as they will defeat the very purpose of the

Act.

In Vijendra Kumar Mali Etc. vs. State of U.P.96

accused persons were

declared as juveniles by the court of C.J.M. and later on same fact was

confirmed by the Sessions Judge, Sonebhadra. However, both the court of

C.J.M. and the Sessions Judge, Sonebhadra rejected the Bail Applications of

the accused persons. Against this refusal, revision was filed before the

Allahabad High Court. High Court allowed the revision setting aside the order

of the Sessions Judge and that of the C.J.M., so far as it related to refusal of

Bail. It was also directed that if the Revisionists move application for bail, the

court shall dispose it of keeping in view the provisions contained in section 12

of the Juvenile Justice (Care and Protection of Children) Act, 2000. This order

96

2003-(109)-CRLJ-4619-ALL

205

was placed before the Sessions Judge, Sonebhadra but he again refused Bail to

the Revisionists by his order dated 10.2.2003. Being aggrieved by the said

order, the present Revisions were filed. Revision was allowed. Orders of

Sessions Judge refusing Bail were set aside and it was directed that the

Revisionists should be admitted to Bail on their guardians filing a personal

bond and two sureties in the like amount to the satisfaction of the C.J.M.

Sonebhadra. The Registrar General was directed to place the record of this

case along with the judgment before the Administrative Judge of Sonebhadra

for issuing necessary instructions to the concerned Sessions Judge or to make

such remarks in his Character Roll as deemed fit.

The court observed that the Sessions Judge, “Sonebhadra has probably lost

sight of the provisions of the Act and ignored the directions issued by this

Court passed in the aforesaid Revisions. He has mentioned the ground of

refusal of Bail to be gravity of the offence, which is none of the grounds

mentioned in section 12 of the Act. It appears from this order that the Sessions

Judge, Sonebhadra was bent upon to refuse the Bail without caring for the law

on this point. Section 12 of the Act provides that the juvenile offender shall be

released on Bail but the exception would be that he shall not be released if

there appears reasonable grounds for believing that the release is likely to

bring him into association with any known criminal or expose him to moral,

physical or psychological danger or that his release would defeat the ends of

justice”.

This Court in a number of judgments has categorically held that Bail to the

juvenile can only be refused if anyone of the grounds existed. So far as ground

of gravity is concerned, it is not covered under the above provisions of the

Act. If the Bail application of the juvenile was to be considered under the

provisions of the Code of Criminal Procedure, there would have been

absolutely no necessity for the enactment of the aforesaid Act. The language

of Section 12 of the Act itself lays down that notwithstanding anything

206

contained in the Code of Criminal Procedure, 1973 or in any other law for the

time being in force, the juvenile accused shall be released.

The order passed by the Sessions Judge nowhere shows that anyone of the

grounds for refusing Bail existed. Under these circumstances the refusal of the

Bail was not only unjustified but illegal and against the purpose of the Act.

In Vikky alias Vikram Singh vs. State of U.P. and Ors.97

juvenile Vicky alias

Vikram Singh was declared to be juvenile but refused the Bail on the ground

that the offence is of heinous nature and is exclusively triable by the Court of

Session. An appeal against the said order was preferred but the Sessions Judge

Kanpur, who dismissed the appeal. The Revision was filed against the

judgment and order of Sessions Judge, Kanpur Nagar, in Allahabad High

Court. The Court held that “Bail was dismissed without applying mind or

caring for the law. Section 12 of the Juvenile Justice (Care and Protection of

Children) Act 2000, is very clear on this point. According to Sub-section (1)

of Section 12 any person, being juvenile, shall be released on Bail with or

without surety. However, for refusal of the Bail there are only three grounds-

firstly if the release is likely to bring him into the association with any known

criminal. Secondly, exposes him to moral, physical or psychological danger

and thirdly if his release would defeat the ends of justice. This Court has been

repeatedly directing that if the release is refused on these grounds the Court

should record findings as to whether any such ground exists or not. It is not

that the mere quoting of few lines from this Act, the Bail should be refused.

The impugned order does not show any such ground either in the order of the

Chief Metropolitan Magistrate or in the order of the Magistrate. The

Magistrate in his order has refused the Bail firstly on the ground that it is

exclusively triable by the Court of Session and the offence being of heinous

nature, which is no ground for refusing Bail under/ Section 12 of the Act.

Appellate Court also summarily dismissed the appeal without properly

appreciating the law on this point and even without discussing the law. The

97

2003 Cri LJ 3457

207

Revision was therefore allowed with direction that the Revisionist Vicky alias

Vikram Singh shall be released on Bail on his guardian's furnishing a personal

bond and two sureties each in the like amount to the satisfaction of Chief

Metropolitan Magistrate Kanpur Nagar”.

In Mata (alias Manohar Singh) vs. State of Rajasthan98

petitioner delinquent

juvenile under Juvenile Justice Act moved an application for Bail under

Section 18 of the Juvenile Justice Act. Same was rejected by Juvenile Court

and in appeal by the Court of Session. Petitioner, therefore, approached

Rajasthan High Court. Before Rajasthan High Court, question was whether the

Bail was rightly declined to the petitioner?

The High Court noted that neither Juvenile Board nor Sessions Judge cared to

look into the provisions of section 18 of JJ (C&P) Act 2000, before declining

Bail to the petitioner. Setting aside orders of these courts, the Rajasthan High

Court released the petitioner on Bail making following observations :

(i) As per Section 18, delinquent juvenile ordinarily has to be

released on Bail irrespective of the nature of the offence alleged

to have been committed unless it is shown that here appears

reasonable ground for believing that his release is likely to bring

him under the influence of any criminal or expose him to moral

danger or that his release would defeat the ends of justice.

(ii) Other provisions of the Juvenile Justice Act clearly show that

extraordinary procedure has been prescribed for Bails, inquiry

and punishment regarding delinquent juveniles. The trial of a

delinquent juvenile under the Code of Criminal Procedure is

prohibited. The delinquent juvenile has to be dealt with under

the provisions of the Act which are curative and reformative

rather than punitive. Section 22 of the Act expressly provides

that no delinquent juvenile shall be sentenced to death or

imprisonment or committed to prison in default of payment of

98

1996 Cri.L.J. 743.

208

fine or in default of furnishing security. Thus, the delinquent

children have been given a special status as a class to be dealt

with as per the provisions of the Act which are intended to

reform them and to save them from becoming hardened

criminals.

(iii)Section 18 of the Juvenile Justice Act clearly lays down that

Bail to a delinquent child is a rule and mandate of the Act

irrespective of the nature and seriousness of the offence

committed by him. The section also provides the grounds and

circumstances when Bail can be declined to a juvenile

delinquent. Those grounds are that release is likely to bring him

into association with any known criminal or expose him to

moral danger or that his release would defeat the ends of justice.

Further, there should be material on record to show that any of

the above circumstances exists to decline Bail.

(iv) The Juvenile Justice Act is a beneficial and social oriented

legislation which should be given full effect by all concerned

whenever a matter relating to a delinquent child comes before

them.

In Master Niku Chaubey vs. State,99

it was observed by the Court that “the

nature of the offence is not the conditions on which Bail can be granted or

refused to the juvenile. It was held that Bail in respect of the juvenile has to be

considered purely under the provision of Section 12 of the said JJ Act, which

requires Bail to be granted mandatorily unless the court feels that the release

of the juvenile is likely to bring him into association of any known criminal or

expose him to moral and physical danger or that release would defeat the ends

of justice.”

99

2006(2) JCC 720

209

In Prakash vs. State of Rajasthan100

the petitioner was facing trial for the

offence under Section 376, IPC. He moved an application under Section 12 of

the Act seeking bail, which came to be dismissed on the ground that he is an

accused of rape and is having the rural background. Against the order of the

JJB, the petitioner filed an appeal which came to be dismissed by the

Appellate Court on the ground of gravity of the offence of rape. Against this

order appeal was filed in the High Court. The question was arise - when can a

juvenile be denied bail under section 12 of the Juvenile Justice Act, 2000?

The order of the JJB, Jodhpur as well as the order of the Appellate Court was

set aside and court directed juvenile to be released on bail, provided his

guardian furnishes a personal bond in the sum of Rs.10,000/- with a surety in

the like amount to the satisfaction of the Principal Magistrate, JJ Board,

Jodhpur with the stipulation that on all the subsequent dates of hearing, he

shall produce the delinquent juvenile before the said Board or any other Court

during pendency of the case and his guardian shall keep proper look-after of

the juvenile delinquent and keep him away from the company of known

criminals.

In Arvind vs. State,101

the Court had observed that “the gravity of the offence

is not a criteria or impediment for the release of the juvenile on Bail”.

In case of Gopal Sharma vs. State of Rajasthan,102

as per case facts in the

intervening night of 02.12.2002 and 03.12.2002 murder of a foreign lady

tourist namely Lee Ching took place in a hotel in the city of Udaipur. The

petitioner who was a guide by profession was also staying with the deceased.

On 2.12.2002 they were seen retiring to room No. 301 alter taking dinner.

However, in the morning of 3.12.2002 till 10:00 A.M. when the room was not

opened and there was no response from inside, it was opened by a duplicate

key. The dead body of the foreign tourist was found lying in the room. The

petitioner was found missing. The F.I.R. was lodged at Police Station,

100

RLW 2006(1) Raj 538 101

1999 (2) I CC Delhi 311 102

RLW 2004 (1) Raj 450

210

Ghantaghar. After usual investigation Police laid charge-sheet against the

petitioner for offence under Section 302 I.P.C. As per the school certificate,

the petitioner-applicant was born on 29.061985, as such on the date of the

incident he was 17 years and 6 months old. Thus, he was held to be a juvenile

within the meaning of Sub-clause (k) of Section 2 of the Juvenile Justice (Care

and Protection of Children) Act, 2000. The Sessions Judge sent the accused

for trial before the Principal Magistrate, Children Court, Udaipur. The

applicant tiled application before the Juvenile Court for release on bail. The

Magistrate held that the release of the accused would defeat the ends of justice

and as such rejected the bail application.

The petitioner preferred an appeal against the said order to the court of

Sessions Judge under Section 52 of the Act. The Sessions Judge rejected the

application. Hence this revision was filed to the High Court. In the High Court

Petitioner contended that the gravity of offence cannot be a ground to reject

the bail application. The High Court held that “the finding of fact recorded by

both the courts below does not call for interference by this court in exercise of

the revisional powers”. Consequently, the revision petition was dismissed. The

Court observed that “in the instant case the bail application has been refused

not only because the applicant is facing trial on a serious charge of murder but

also the special circumstance that his act is prejudicial to image of the country

in the world, adversely affecting the tourism business. The tourists move in the

country on the guidance and faith of guide. A betrayal to foreign tourist is

betrayal to the country, projecting a bad image in the eye of the world. Thus,

the view taken by both the courts below cannot be said to be erroneous in

considering that the case of the petitioner falls in the exceptional category

provided under Section l2 of the Act”.

In Kamil vs. State of Uttar Pradesh,103

it was observed that: “A juvenile in

conflict with law may be released on bail with or without surety but such

release shall not be possible if there appear to be reasonable grounds for

103

1994 Cri. LJ 1491

211

believing that such release is likely to bring him into association with any

known criminal or expose him to moral, physical or psychological, danger or

his release would defeat the ends of justice. Welfare of the juvenile or child is

the need of the day and the provisions contemplate a judicial officer with more

sensitive approach oriented outlook.”

In Vishal Dubey (Minor) vs. State of U.P.,104

a report was also called from the

District Probation Officer regarding revisior1ist‟s antecedents etc. in which he

stated that juvenile Vishal Dubey was residing with his father Ram Prakash

Dubey at Agra who was employed as Reader in the Consolidation department,

Mathura. He was a student of B.Sc. in R.B.S. College and upon inquiries the

neighbours told that Vishal Dubey was not of criminal nature nor he remained

in the company of boys of criminal nature. They also told that he had been

earlier detained in a criminal case but he had been hailed out and the police

had again detained him in this criminal case. It was also stated that the father

of Vishal Dubey assured the Probation Officer that if Vishal Dubey is released

on bail, he would be sent to some other place out of Agra for completing his

studies. The District Probation Officer concluded in his report that taking into

consideration the above facts, if he is released on bail, it shall not have any

adverse effect on the interest of justice. The revisionist was a juvenile on the

date of the incident and there was no dispute on this point. The bail to a

juvenile can be refused only on three grounds as mentioned in Section l2 of

Juvenile Justice (Care and Protection of Children) Act 2000. The report of the

District Probation Officer on all those points is in favour of the revisionist. It

was further been stated by the Probation Officer that upon inquiries the

neighbours of the revisionist told him that the revisionist was not of criminal

nature nor he remained in the company of criminals though he had been

arrested by the police in connection with some cases.

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MANU UP 0509 2006

212

The revisionist, who was juvenile on the date of the incident, was bailed out

and the orders of courts rejecting his bail applications declared set aside.

In Ravi-Ul-Islam State (NCT) The High Court Of Delhi,105

the revision

petition directed against the order of the Additional Sessions Judge whereby

the petitioner„s appeal against the order dated 27.10.2005 passed by the

Juvenile Justice Board, Delhi was dismissed. A charge-sheet under Section 20

of the Narcotic Drugs and Psychotropic Substances Act, 1985 was filed

against the petitioner for being found in possession of 1.820 kgs of Charas.

The petitioner moved an application for transfer of the proceedings to the

Juvenile Justice Board inasmuch as the petitioner claimed to be a Juvenile.

That application was dismissed by the Additional Sessions Judge, New Delhi

by an order dated 05.02.2005. The petitioner, being aggrieved by the said

order, filed a Criminal Revision Petition in the High Court. High Court

allowed the order and the entire matter was remanded to be dealt with in

accordance with law. Thereafter, the petitioner moved an application for bail

before the Juvenile Justice Board which was dismissed by the said Board.

Being aggrieved by this order, the petitioner preferred an appeal before the

Sessions Court. The same was dismissed. The petitioner therefore again

approached the High Court and pointed out that the grant of bail under Section

12 of the said Act is mandatory unless the conditions requiring the court not to

grant bail specified in the Section itself are satisfied. He pointed out that in the

impugned order, apart from a simple statement that the release of the

petitioner would defeat the ends of justice; there is nothing to substantiate or

to back this finding. The petitioner submitted that Social Investigation Report

does not disclose any fact which could lead one to the conclusion that

releasing the petitioner, who is a Juvenile, would result in the defeat of ends of

justice.

The high court noted that the Social Investigation Report is in favour of the

Juvenile being released. The Report reveals that the family consists of the

105

Crl. Rev P. No. 896/2005, Decided On 05.05.2006

213

father, mother and elder brother of the Juvenile and they are all earning

members and they altogether earn about Rs. 10,500/- per month. It is also

pointed out that prior to the petitioners arrest, he was doing embroidery work

and that the family is socially recognized in the locality. Although the police

record of the family member shows that the father and elder brother of the

Juvenile had another case registered against them wider Sections 308/328/34

IPC, they have been acquitted. The report also reveals that the parents of the

Juvenile are „very much concerned‟ about his welfare and that all the other

family members, including the elder brother would take full responsibility of

the Juvenile in future. It is noted that the juvenile's habits are that he plays

cricket, watches television some times and no bad habit was indicated. The

report clearly states that no criminal traits have been reported in his

personality during the course of interview. Even the neighbours, who have

been interviewed, have given a satisfactory report about the behaviour and

conduct of the Juvenile. Under the heading „Analysis of the case giving an

idea‟, it has been indicated that the Juvenile denies the charges of the present

case and states that he has been falsely implicated in the case. It is also

indicated that the Juvenile has promised to lead a law abiding citizen's life and

the parents have also promised to take proper care of the Juvenile in future and

also to take suitable steps to counsel and guide him. It was held that “looking

at the Social Investigation Report, it is difficult to come to the conclusion that

the release of the Juvenile would bring him into association of any known

criminal or expose him to any physical or moral danger or his release would

defeat the ends of justice. Accordingly, in view of the specific provisions of

Section 12 of the said Act, the petitioner would be clearly entitled to be

released on bail.”

a) a reasonable ground for believing that the release is likely to bring the

juvenile into association with any known criminal;

b) his release is likely to expose him to any moral, physical or

psychological danger; and

214

c) his release would defeat the ends of justice.

The Additional Sessions Judge refused to grant bail to the petitioner invoking

the third exception, i.e., that if the juvenile is released, it would defeat the ends

of justice. The reasons for arriving at this conclusion are entirely different

from the factors which require to be considered. The question of the ends of

justice being defeated has to be considered in the context of the welfare of the

juvenile, whereas what the Additional Sessions Judge has done is that,

according to him, the ends of justice would be defeated because the trial is yet

to commence; the cases against co-accused are pending in other courts; release

of the juvenile would affect the trial in the main case. None of these are factors

which have to be taken into account when a decision is required as to whether

the release of the juvenile would defeat the ends of justice or not. Apart from

this, nothing else has been pointed out which would indicate that the release of

the petitioner would result in a defeat of the ends of justice.

In Sandeep Kumar vs. State106

, the petition sought bail for a juvenile who was

in observation home since 29.10.2003. The juvenile was arrested by Police

Station Alipur on 29.10.2003 for an alleged offence under Section 376/201/34

of the IPC. The FIR in this case was lodged by the mother of the victim. The

unfortunate victim was only six years old at the time of commission of

offence. On 29.10.2003 at 6.30 p.m. the victim came to her mother with tears

in her eyes and with blood on her clothes which were wet and told her that

Sandeep (petitioner) took her to his house and committed ganda kaam with

her. The child also reported that the mother of the petitioner first took off her

clothes washed them and sent her back in those wet clothes. The Juvenile

Justice Board declined bail to him. So did the court of sessions when

approached in the revisional jurisdiction. The Juvenile Justice Board in its

order dated 3.6.2004 observed that instances of sexual offences on minor girls

were on the rise and that in this case although the accused was a juvenile the

victim was also of a very tender age. The Board took into consideration the

106

119 (2005)DLT 398

215

report of the probation officer but ignored the advice of the probation officer

on the point as to whether the petitioner deserves institutionalisation. The

Additional Sessions Judge in its order found that if the juvenile was admitted

to bail, the society will be in moral and physical danger as the victim was very

tender in age.

The High Court agreed with the conclusions drawn by the Additional

Sessions Judge as well as the Juvenile Justice Board.

The Court held that “It is clear from the above point that the social

investigation report is self contradictory. The social and economic condition of

the family cannot be said to be satisfactory, if the family sends the child,

below sixteen years of age, to work as daily wager. It cannot be said that the

mother has any control over the juvenile as the juvenile has committed an act

depicting a criminal tendency. It cannot be said to be an act done in a sudden

spurt of anger. The juvenile took the child to his house and committed rape

showing clear criminal tendencies in him. The mother certainly is not

concerned with the welfare of the child who instead of insisting that the child

goes to school sends him out to work. In this situation if the juvenile offender

is released from the observation home and sent back to the same socio-

economic atmosphere, he will be exposed to moral and psychological dangers.

Further the risk of juvenile committing such a offence in future is also a

likelihood because victims of sexual offences of such tender age are often not

even able to bring the offence to the notice of the elders. Hence the Court held

that it would not be in the interest of justice to release juvenile on bail. The

prayer for bail, therefore, was declined”.

The Court further observed that “the record of the Juvenile Justice Board that

the prosecution has cited fifteen witnesses but in the last one year, since the

commencement of the trial only six have been examined. The Juvenile Justice

Board was therefore directed to examine the remaining witnesses within a

period of two months and make every endeavor to dispose of the matter within

one month of completion of prosecution evidence”.

216

In KishanKumar@Jailer vs. The State (NCT of Delhi),107

the bail for juvenile

(petitioner) was sought in this appeal before the High Court. It was submitted

that by virtue of Section 12 of the Juvenile Justice (Care and Protection of

Children) Act, 2000, the petitioner would be entitled to be released on bail and

the exceptions provided in Section l2 to the effect that there exists reasonable

grounds for believing that the release is likely to bring him into association

with any known criminal or expose him to moral, physical or psychological

danger or that his release would defeat the ends of justice, are also not

attracted. Reliance was placed on the Social Investigation Report submitted to

the Juvenile Justice Board, Kingsway Camp, Delhi by the Chief Probation

Officer, Sewa Kuteer Camp, Kingsway Camp. The recommendation regarding

treatment of the Juvenile in that Report reads as under:

Juvenile is 16 years old and he is first offender. His family members are much

worried about the possible punishment. Neighbourerd gave the satisfactory

report about the conduct and behaviors of the Juvenile. His father and uncle

gave assurance that e will take care and vigil over of the Juvenile in future. In

view of all personal traits of the Juvenile, the satisfactory report of the

neighborhood the strong ties of the family members with each other and his

resent occupation agriculture at his active place village Basgaon, Distr.

Gorakhpur (UP). Institutionalization at this stage does not yield fruitful results.

He may be given chance.

State opposed the grant of bail by saying that the Juvenile is better of not

being released as indicated by the order of the Juvenile Justice Board dated

17.01.2005 The State further submitted that the bail application was also

rejected by the Additional Sessions Judge on 01.02.2005 on the ground that

the case was pending before the Juvenile Justice Board and one material

witness still remains to be examined. However, the counsel for the State

submitted that when the Juvenile Justice Board considered the grant of bail-to

the present petitioner, the only material before it was the said Social

107

MANU/DE/0248/2005

217

Investigation report. Decision: The Court directed that “the petitioner should

be released on bail on furnishing a personal bond in the sum of Rs.5000/- with

one surety of the like amount to the satisfaction of the Juvenile Justice Board”.

Upon going through the report, it does not appear that there was any

indication that if the Juvenile is released on bail, the release is likely to bring

him into association with any known criminal or expose him to moral,

physical or psychological danger or that his release would defeat the ends of

justice. In this view of the matter, the exceptions carved out in Section 12 of

the said Act are not attracted and that being the case, in terms of the said

Section, the petitioner has to be released on bail.

Bail and not jail is a rule which is provided under Juvenile Justice (Care and

Protection of Children) Act, 2000. However, on the basis of particular facts of

a case the provisions have been applied differently resulting into different

judicial opinions. The juvenile, however, has been held to be always entitled

to bail except where the denial of bail to him would be in juveniles own

interest. The Courts have expressed the view that “for denying bail there has to

be a reasonable ground that the juvenile's release would bring him into

association with known criminals or expose him to moral psychological

danger or his release would defeat the ends of justice. This reasonable ground

for believing should be material and substantive one and not flimsily or

hypothetical one. As observed above, a juvenile cannot be refused bail on the

ground of seriousness and gravity of offence.”

7.2.5 Final Disposition of the Juvenile

In Kakoo vs. State of H.P.,108

Kakoo, aged 13 years, was convicted for

committing rape on a child of two years and was sentenced to four years'

rigorous imprisonment. His conviction was upheld by the High Court of

Himachal Pradesh. Reference was made to the Supreme Court contending that

if the main object of punishment is to reform the prisoner and to reclaim him

108

(1976) 2 SCC 21

218

to society; his prolonged detention in the company of hardened criminals

would be subversive of that object. Further it was stressed that the best way of

reforming child delinquent is to put him back under the supervision of his

father subject to the execution of a bond by the latter for his son's good

behaviour for a certain period. In the alternative, it was urged, that the

sentence be reduced to the imprisonment already undergone, with the

imposition, if at all, of a little fine. Reference has also been made to Sections

82 and 83 of the Penal Code to bring out the point that in the matter of crime

and punishment, a child offender is not to be treated in the same manner as a

mature adult. The State, however, stoutly opposed any reduction in the

sentence. Stress has been laid on the grisly manner in which the crime was

committed.

It was held that “the ends of justice will be served by reducing the sentence of

the appellant to one year's rigorous imprisonment and a fine of Rs.2000 and in

default of payment of fine, to suffer six months' further rigorous

imprisonment. The appellant shall be detained separately from adult prisoners.

He should preferably be detained in a reformatory school, if any, for the said

period. The fine, if realised, shall be paid as compensation to Shrimati

Parmeshwari Devi, the mother of the victim baby”.

It was observed that “while the sordid features of the case, including the

sadistic manner in which the crime was committed by their instinctive reaction

tend to steel the heart of law for a sterner sentence, we cannot overlook the

stark fact that at the time of commission of offence, the appellant was hardly

13 years of age. An inordinately long prison term is sure to turn him into an

obdurate criminal. In the case of child offenders, current penological trends

command a more humanitarian approach. Under the Penal Code, an infant

under seven is conclusively presumed to be incapable of committing crime. At

this age he is not endowed with any discretion to distinguish right from wrong.

Even a child between seven and twelve who may not have attained sufficient

maturity of understanding to entertain a criminal intent i.e. Doliincapax is

219

presumed to be incapable of committing an offence. In several States of India

enactments have been passed to treat juvenile offenders or child delinquents

differently in the matter of crime and punishment. We are told that there is no

such enactment in force in Himachal Pradesh. It was found that there was a

need for reformatory approach in awarding punishment to juvenile delinquent

aged 13 found to have committed rape on child of 2 years. Sentence was

reduced to one year's rigorous imprisonment and a fine of Rs.2000 was

imposed.

In Santo and others vs. State of U.P.109

three boys aged between 10-14 years

raped 11 year old girl and were convicted for an offence under section 376 of

the Indian Penal Code. Allahabad High Court affirmed sentence of 2 years

imprisonment to be served by detention in an approved school. On appeal, the

Supreme Court held that “the courts below have failed to apply their mind to

considerations which are relevant when a youthful offender is sentenced. The

U.P. Children Act, 1951 contains two provisions; section 29 and section 30.

Section 29 provides that when child is found to have committed an offence

punishable with transportation or imprisonment, the court, if satisfied on

inquiry that it is expedient so to deal with the child, may order him to be sent

to an approved school for a stated period. But under section 30 the court may

order that the youthful offender to be, instead of committing him to approved

school, either discharged after due admonition or released on probation of

good conduct and commit him to the care of his parents, etc. Since in this case

child has acted on impulse and there is nothing to show the presence of any

vicious streak of character, it would be more appropriate to leave him to the

care and attention of character, it would be more appropriate to leave him to

the care and attention of parental authority rather than to send him to an

approved school”.

It observed, “That our juvenile justice system still thinks in terms of terror,

not cure, of wounding, not healing, and a sort of blind man's buff is the result.

109

(1979) 2 SCC 628

220

This negative approach converts even the culture of juvenile homes into junior

jails. From the reformatory angle, the detainees are left to drift, there being no

constructive programme for the detainees nor correctional orientation and

training for the institutional staff…. The state's response to punitive issues

relating to juveniles has been stricken with 'illiteracy' and must awaken to a

new enlightenment, at least prompted by the International Year of the Child….

The mainstream of criminal justice system has not been refined by restorative

legislation…. The finer focus of sentencing is not furious reaction to the

offence but habilitative rescue of the youthful offender from moral-material

abandonment and careful reformation by kindling his creative potential.

Judicial responsibility is not mechanic but humanistic, and the ritualistic

magistrate is a misfit....”

In Bhoop Ram vs. State of U.P.110

the issue for consideration was whether the

appellant who had been convicted and sentenced along with certain adults

accused should have been treated as a child within the meaning of Section 2

(4) of the U.P. Children Act, 1951 and sent to the approved school for

detention therein till he attained the age of 18 years instead of being sentenced

to undergo imprisonment in jail.

The Court after considering the material on the record opined that “the

appellant therein could not have completed 16 years of age on the date when

the offence was committed and held that the appellant should have been dealt

with under the U.P. Children Act instead of being sentenced to imprisonment

when he was convicted by the Sessions Judge under various grounds. Since

the appellant, more than 28 years, the court directed for quashing of remaining

sentence imposed on him and his release forthwith”.

“... where an accused had been wrongly sentenced to imprisonment instead of

being treated as a child under Section 2 (4) of the U.P. Children Act and sent

to an approved school and the accused had crossed the maximum age of

detention in an approved school viz., 18 years, the course to be followed is to

110

1989 (3) SCC 1

221

sustain the conviction but however quash the sentence imposed on the accused

and direct his release forthwith....”

In another case111

, the Supreme Court held that “Since the appellants are now

aged more than 30 years, there is no question of sending them to an approved

school under the U.P. Children Act for detention. Accordingly, while

sustaining the conviction of the appellants under all the charges framed against

them, we quash the sentences awarded to them and direct their release

forthwith....”

In UttamGhosh vs. State of West Bengal and anr112

as per fact, the accused

assaulted victim as a result of which victim's left thumb was imputed. The

case was committed to the Court of Session where the defence produced one

ossification test report pointing out that the accused was aged about 17 years

at the time of the alleged offence, and after a contested hearing, the Additional

Sessions Judge came to the finding that the accused was a minor and that he

was fit to proceed with the trial as there was no Juvenile Court in the District.

The judge found the accused guilty under Section 307, IPC and sentenced him

to suffer R.I. for 7 years and to pay a fine of Rs.500/-, in default, to suffer

further R.I. for three months. This appeal is directed against said judgment and

order. The appellant practically did not challenge the conviction, but he

directed his attack on the non-observance of the settled principle of law by the

trial court in the case of a juvenile delinquent within the meaning of the West

Bengal Children Act, 1959 and argued that the provision of Section 26 of the

Act was not followed by the court below and the order of sentence was passed

without taking into consideration the facts and circumstances of this case. It is

also pointed out that though the Judge concluded that the accused was of

tender age and the incident took place on the spur of moment, no attempt was

made to take into consideration the provisions of section 26 of the Act.

111

Pradeep Kumar v. State of U.P.(1995) Supp. (4) SCC 419 112

2004-(110)-Cr. L.J. 0440-CAL

222

Accordingly, the appellant contended that in a case of this nature, sentence is

liable to be set aside. The State, however, contended that the evidence on

records is sufficient to indicate that the trial Court came to a just decision in

convicting the present appellant under Section 307 IPC. It is also contended

that in view of the provisions of Section 465, Cr. P. C., there is no reason to

interfere with the sentence passed in this case.

After a due consideration of the evidence on record and circumstances

explained, the Judge rightly found the accused guilty and convicted him there

under. But as regards imposition of sentence, he completely ignored his own

order dated 16.04.1985 in which he concluded that the present appellant was a

minor and proceeded as if, the accused person was an adult and not a juvenile

delinquent within the meaning of West Bengal Children Act, 1959. The trial

Court only at the initial stage followed the procedure and examined the

accused under Section 251, Cr.PC. but thereafter forgot to apply the other

provisions of the Code. This is sufficient to show that a failure of justice has in

fact been occasioned thereby, and accordingly, the Court is competent to

proceed with the question of legality of the sentence and Section 465 of the

Cr.P.C. is not a bar.

In Section 27 of the West Bengal Children Act, 1959, there are provision as to

what order can be lawfully passed in respect of the juvenile delinquent. The

trial Court did not consider this aspect of the matter. The imposition of

sentence to R.I. for 7 years and thereafter to pay a fine of Rs.500/- and, in

default, to suffer further R.I. for three months are sufficient to indicate that the

Court below did not apply its mind to the West Bengal Children Act, 1959. In

fact, he was not competent to pass an order of sentence in the manner done in

this case and accordingly, passing of the sentence in this case has no sanction

of law and accordingly it is liable to be set aside.

In the facts and circumstances of this case, the conviction of the present

appellant is upheld, but sentence is liable to be set aside or quashed. In the

present case, the accused was aged 17 years at the time of alleged offence in

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1983 and at present, he is aged about 36 years and as such no purpose would

be served in passing any order under Section 26 of the West Bengal Children

Act, 1959. Accordingly, the conviction of the appellant under Section 307 IPC

is sustained, but the sentence awarded to him is quashed and the accused is

discharged from the Bail bond. It is made clear that in terms of Section 49 of

the West Bengal Children Act, 1959, the conviction of the said accused shall

not be regarded as disqualification attached to conviction for an offence.

In Jitendra @ Banti113

, the juvenile (accused) was convicted for the murder

and he was sentenced to suffer life imprisonment. The High Court on appeal

“maintained the conviction but set aside sentence because of the fact that the

accused was a juvenile and in view of Section 20 of the JJ Act, the appellant

could not have been ordered to undergo imprisonment.

In case of Sheela Barse vs. Secy., Children's Aid Society,114

the appellant

challenged the judgment of the Bombay High Court delivered on a writ

petition filed by her. In the writ petition before the Bombay High Court she

made grievance about the working of the New Observation Home located at

Mankhurd maintained and managed by the Children‟s Aid Society, Bombay.

The grievances made by the petitioner were of four:

i. Delay in repatriation or restoration of children to their parents in

respect of whom orders for repatriation were made by the Juvenile

Court;

ii. Non-application of mind in the matter of taking children into custody

and directing production before the Juvenile Court;

iii. Absence of proper follow-up action after admission of the children in

the Observation Homes, in particular, grievance was made that the

Child Welfare Officers were not performing their duties and such

failure led to continued detention of children without any justification;

and

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RLW 2004 (2) Raj 1297 114

(1987) 3 SCC 50

224

iv. Detention in such circumstances was illegal and the condition very

often resulted in harassment to the children so detained.

The court did not agree with the supervision over the Observation Homes even

though without this aspect being assured the condition of Homes could not

improved. However, the court held that “dedicated workers have to be found

out, proper training has been given to them and such dedicated workers should

be introduced into the children homes”.

The Court also held:

i. That the Child Welfare Officer (Probation) as also the Superintendent

of the Observation Home must be duly motivated. They must have a

working knowledge in psychology and have a keen sense of

observation and on observation and on their good functioning would

depend the efficacy of the scheme.

ii. The Juvenile Court has to be manned by a Judicial Officer with some

special training. Creation of a court with usual Judicial Officer and

labelling it as Juvenile Court does not serve the requirement of the

statute. If that were so, the statute would have no necessity of

providing a Juvenile Court. The statutory scheme contemplates a

judicial officer of a different type with a more sensitive approach-

oriented outlook. Without these any Judicial Officer would, indeed, not

be competent to handle the special problem of children.

iii. The Court agreed with the appellant that the respondent Society should

be treated as a State within the meaning of Article 12. The respondent

Society was therefore told to regulate its activities not only in

accordance with the statutory requirements but also act in a manner

satisfying the requirements of the constitutional provisions in Articles

21 and 24 as also the Directive Principles of State Policy.

iv. The Court also directed the State of Maharashtra to take prompt action

to strictly enforce the law, act upto the requirements of the

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constitutional obligations and proceed to implement the directions

given by the High Court as also by it in this judgment.

Currently, juvenile and their issues have been getting concentration from both

the Government and the society but we must say that the problems are of such

massive magnitude that all that has been done till now is not sufficient. It is

the obligation of every society to bring up children who will be citizens of

tomorrow in a correct way. Today‟s children will be the leaders of tomorrow

who will make the country‟s standard high and uphold the prestige of the

Nation in the whole world. If a child goes erroneous for want of proper

knowledge, education, attention, training and guidance, it will indeed be a

deficiency of the society and of the Government.

In Suresh Dutt vs. State of Rajasthan,115

the court rejected all the contentions

forwarded by the petitioner but accepted that since the appellant is presently

aged more than 36 years, there is no question of sending him now to an

approved School under the Juvenile Justice Act for detention. Accordingly

while sustaining the conviction of the appellant under all the charges proved

against him, the order of sending him to Approved Reformatory School is

quashed.

In Ram Suresh Singh vs. Prabhat Singh alias Chhotu Singh &Anr.116

The court

observed that:

“we are not oblivious of the fact that it is difficult to lay down a law as

to whether in a case of this nature, the lower or the upper age or the

average age should be taken into consideration. Each case depends on

its own facts. In this case, however, the documents produced by

respondent no.1 were not found to be forged, fabricated or otherwise

inadmissible in law. If a document is proved to be genuine and satisfies

115

2003-( 109)-CRLJ -3342 -RAJ 116

2010 (1) RCR (Criminal) 245

226

the requirement of law, it should be, subject to just exceptions, relied

upon”.

In Mohan Mali &Anr. vs. State of M.P.117

The Supreme Court observed:

“In the facts of this case, we are faced with a situation where the

juvenile, DhanaLal, had already been tried along with adults

and had been convicted under Sections 302/34, 326/34 IPC and

was sentenced to life imprisonment, out of which he has already

undergone about 9 years of the sentence. Rule 98 of the 2007

Rules, in our view, squarely applies to Appellant No.2

DhannaLal's case. His case is to be considered not only for grant

of bail, but also for release in terms of the said Rule since he has

completed more than the maximum period of sentence as

provided under Section 15 of the 2000 Act”.

The legal position has been clearly explained in Hari Ram's case (supra) and

does not, therefore, require any further elucidation in this case. Having regard

to the fact that the appellant no.2, DhannaLal, was a minor on the date of

commission of the offence, and has already undergone more than the

maximum sentence provided under Section 15 of the 2000 Act, by applying

the provisions of Rule 98 of the 2007 Rules read with Sections 15 and 64 of

the 2000 Act, we allow the appeal as far as he is concerned and direct that he

be released forthwith. The bail application filed on his behalf is also disposed

of, accordingly. The appeal so far as other accused Mohan Mali, is concerned,

was ordered to be listed for hearing separately.

The Indian Parliament showing its solidarity with International Community

and in compliance with its commitment to International Obligations has

enacted “Juvenile Justice (Care and Protection of Children) Act, 2000” in

conformity with the international standards and rules providing for up-liftment

of the children in need of care and protection and for their growth and

development. And again in 2012 after Delhi gang rape case, in 2015 the Indian

117

2010 (2) RCR (Criminal) 839

227

Parliament act according to the need of society and add some new and

necessary provisions to the JJ (C&P) 2000 Act and passed a new Act called

Juvenile Justice (Care and Protection) Act 2015. The objective of the 2015 Act

passed by Parliament is a collective reform and restoration even if it takes the

route of stiff punishment for certain adult crimes even if it takes the route of

stiff punishment for certain adult crimes committed by juveniles below 18

years. Now role of Supreme Court of India and various High Courts has been

very appreciable in interpreting the provisions of the new enactment in such a

way that advances the cause of the juvenile justice. The judicial trends set by

the Supreme and High Courts are guiding factors for the lower judiciary. The

beneficial provisions have been applied and benefit has been given to a

number of juveniles whose cases had even attained finality and they were

undergoing sentences. It has also been the efforts of the courts at the time of

final disposition of the case that an opportunity for reforming himself is

provided to the juvenile in conflict with law by way of proper training and

providing necessary care and protection for absorbing the juvenile in the main

stream of life.

7.3 Juvenile Justice Amendment Act, 2015

The Juvenile Justice (Care and Protection of Children) Act, 2015 has come

into force and repeals the Juvenile Justice (Care and Protection of Children)

Act, 2000. “The Juvenile Justice (Care and Protection of Children) Bill, 2015”

was passed by Lok Sabha on 7th

May, 2015; was passed by Rajya Sabha on

22nd

December, 2015 and received Presidential assent on 31st December,

2015118

.

The JJ Act, 2015 provides for strengthened provisions for both children in

need of care and protection and children in conflict with law. Some of the key

provisions include: “inclusion of several new definitions such as orphaned,

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www.pib.nic.in

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abandoned and surrendered children; and petty, serious and heinous offences

committed by children; clarity in powers, function and responsibilities of

Juvenile Justice Board (JJB) and Child Welfare Committee (CWC); clear

timelines for inquiry by Juvenile Justice Board (JJB); special provisions for

heinous offences committed by children above the age of sixteen year;

separate new chapter on Adoption to streamline adoption of orphan,

abandoned and surrendered children; inclusion of new offences committed

against children; and mandatory registration of Child Care Institutions”.

Under Section 15, 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 to a Children‟s Court (Court of Session) after conducting preliminary

assessment. The provisions provide for placing children in a „place of safety‟

both during and after the trial till they attain the age of 21 years after which an

evaluation of the child shall be conducted by the Children‟s Court. After the

evaluation, the child is either released on probation and if the child is not

reformed then the child will be sent to a jail for remaining term. The law will

act as a deterrent for child offenders committing heinous offences such as rape

and murder and will protect the rights of victim.

To streamline adoption procedures for orphan, abandoned and surrendered

children, the existing Central Adoption Resource Authority (CARA) is given

the status of a statutory body to enable it to perform its function more

effectively. Separate chapter (VIII) on Adoption provides for detailed

provisions relating to adoption and punishments for not complying with the

laid down procedure. Processes have been streamlined with timelines for both

in-country and inter-country adoption including declaring a child legally free

for adoption.

Several rehabilitation and social reintegration measures have been provided

for children in conflict with law and those in need of care and protection.

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Under the institutional care, children are provided with various services

including education, health, nutrition, de-addiction, treatment of diseases,

vocational training, skill development, life skill education, counselling, etc to

help them assume a constructive role in the society. The variety of non-

institutional options include: sponsorship and foster care including group

foster care for placing children in a family environment which is other than

child‟s biological family, which is to be selected, qualified, approved and

supervised for providing care to children.

Several new offences committed against children, which are so far not

adequately covered under any other law, are included in the Act. These

include: “sale and procurement of children for any purpose including illegal

adoption, corporal punishment in child care institutions, use of child by

militant groups, offences against disabled children and, kidnapping and

abduction of children”.

All child care institutions, whether run by State Government or by voluntary

or non-governmental organisations, which are meant, either wholly or partially

for housing children, regardless of whether they receive grants from the

Government, are to be mandatorily registered under the Act within six months

from the date of commencement of the Act. After that penalty is provided in

the law in case of non-compliance of Act guidelines.

Under the new Juvenile Justice (Care and Protection) Act 2015, first time

police registered the case under section 279, 337 and 304 (for culpable

homicide not amount to murder which entails a maximum of 10 years jail),

when a teenager, who allegedly ran over a 32 year old marketing executive

while driving his father's Mercedes in Delhi in April and Juvenile Justice

Board said the investigation officer had rightly booked the accused for

culpable homicide as it seems that the juvenile was driving not merely rash

and negligent but also knew well that it could lead a serious accident. Juvenile

230

Justice Board also ordered that the boy would face trial as an adult while

observing that the offence alleged committed by him was “heinous”, which

under the act referred to as offence committed by a child who has completed,

or is above 16 year of age and the case transferred to the Session Court.

It is the first of its kind case since the amendment in the Juvenile Justice (Care

and Protection of Children) Act 2015, which allowed the Board to transfer

cases of heinous offences by children to the session court.

7.3.1 Following Amendments made in 2015 Bill

The Juvenile Justice(C&P) 2015 allows the juvenile between the ages of 16 to

18 years to be tried in adult court if they found to commit any heinous crimes.

And these are some notable amendments which made in Juvenile Justice (Care

and Protection) Act 2015 by the Parliament of India, are:

i. Any child that found committing any crime will now be send for a

preliminary assessment for a period of three months, up from the

earlier one month.

ii. A clarification is added that the preliminary assessment is not a trial,

but to assess the child‟s capacity to commit the crime.

iii. A new clause on fair trial is added, under which the assessment will

look into the special needs of the child, under the tenet of fair trial

under a child-friendly atmosphere.

iv. The child will not suffer from any disqualification that arises from any

conviction under the Act.

v. The records of any conviction will be destroyed after the expiry period

of appeal, except in the case of heinous crimes.

vi. Biological parents giving up children for adoption, will be given three

months to rethink their decision, instead of the existing one month.

vii. The aftercare of the child in institutional care will not be restricted to

only one time.

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viii. Any child leaving institutional care can now receive financial support

more than one time.

ix. Disabled children will be given precedence in inter-state adoption.

x. Abandoned children, found by the childcare facilities, will be kept for

60 days before being given up for adoption or foster care, instead of

the existing 30 days.

xi. Any child who has been abandoned by biological parents due to

unavoidable circumstances will not be considered to be wilfully giving

up the child.

xii. In acting on an appeal against an order passed against the child, the

board will now take help of experienced psychologists and medical

specialists.

xiii. There will now be proper training of special juvenile units in the police

force.

xiv. NCPCR and SCPCR will be the nodal authorities to be responsible for

monitoring implementation, the publicity of the amended act, and to

look into cases that arise out of the Act.

7.3.2 Criticism and Loopholes in The JJ (C&P) Act 2015

i. It will have adverse effect impact in the protection and rehabilitation of

juvenile in conflict with law.

ii. The juvenile in the age group of 16 to 18 will be traumatic situation if

they are brought before the criminal court for having committed

serious crimes.

iii. It will leads to retributive justice, not juvenile justice.

iv. Since JJB is presided over by Chief Judicial Magistrate of the district,

one could assume that the chance of transfer of adolescents to adult

court would apparently be more.

v. Harsh punishment cannot be deterrent and this in turn could make the

juveniles hard core criminals.

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vi. Is it the government acceptance as to its failure to ensure rights to the

children in this country?

vii. Amendment of Juvenile Justice Act is retrogressive and would

undermine the basic objectives of the act.