A REPORT

ON

JUVENILE JUSTICE: CARE & PROTECTION OF CHILDREN

By

M.VAMSHI KRISHNA

15FLUHH006037

A report in partial fulfilment of the requirements of BBA.LLB (Hons)

Program of Faculty of Law, IFHE-Hyderabad.

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 Declared as Deemed-to-be-university
Under section 3 of UGC Act, 1956

A REPORT
ON
JUVENILE JUSTICE:
CARE & PROTECTION OF
CHILDREN

SUBMITTED TO:
Mr. Ravi Salaka

SUBMITTED BY:
M.VAMSHI KRISHNA
15FLUHH006037
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 Table of Content

Acknowledgment................................................................................
Abstract ..............................................................................................
Introduction........................................................................................
Salient Features of juvenile Justice...................................................
History of Juvenile Legislation.........................................................
Who is a Juvenile...............................................................................
Juvenile Justice Board.......................................................................
Apprehension..................................................................................................

Bail....................................................................................................
Enquiry .............................................................................................
Order by JJB when Juvenile in conflict with law.............................
Procedure in relation to care and protection of children..................
Other offences towards children.......................................................
Appeal............................................................................................................

Application before Board on behalf of Juvenile............................................

Case laws 1....................................................................................................

Case law 2......................................................................................................

Conclusion.....................................................................................................

References ........................................................................................
List of Abbreviations.......................................................................

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 Acknowledgment
I wish to express my sincere gratitude and profound thanks to

Mr. B. Madhan Mohan for the constant guidance and tremendous

Help and by providing me the necessary information which are very

Helpful in completing my project report and encouragement given

During the period of the study.

My sincere thanks to Prof. V. HEMALATHA DEVI, Dean, Faculty

of Law, IFHE for giving me such an opportunity.

I would like to thank Mr. Ravi Salaka, Faculty of Law, IFHE. For

Guiding me throughout the SUMMER INTERNSHIP PROGRAM.

I would like to thank all the staff members at Mr. B.Madhan Mohan’s

Office for the support extended to me throughout my internship.

And also I would like to thank all the persons who have helped me

Throughout my internship to complete my project report.

(M.VAMSHI KRISHNA)

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 ABSTRACT

Juvenile delinquency is increasing day by day, this is the age group below 18

years, children these days are getting influenced by the system of the society and

are mislead into mischievous acts which inter turnout to be crimes, who are then

brought to justice by juvenile justice board. Increase in juvenile delinquency is

due to the poverty, lack of care towards children by parents. Children will do

everything for money by this they involve in doing crimes.

Here they are segregated into three categories on the basis of their

ages and the crimes committed by them.

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 INTRODUCTION TO JUVENILE JUSTICE

As we see now a days there is increase in juvenile crimes. If a Juvenile commits a crime then

he will be dealt with the separate law, here the Juvenile means a child below the age of 18 yrs

who conflict with law. Juvenile Justice Act this mainly deals with the child in conflict with law

and care and protection of the children. The punishments given to a Juvenile and a Adult are

different if they commits a same crime, Due to the heinous crimes committing by children, the

society strongly demands that they has to be treated as adults, this issue was came up in Delhi

Gang rape, were one of the victim was a juvenile. This law deals with the children below

18years. As per United Standard Minimum Rules for the Administration of Juvenile Justice,

1985(Beijing Rule) that a juvenile is to be treated different from the adults. The acts of

juvenile delinquency are Running away from the homes without the permission of parents,

visiting Grambling centres, using of vulgar languages, committing sexual offences, stealing

this were the activities were children get attract to them very easily. Drinking and smoking,

fighting etc... This shows the uncontrolled and aggressive behaviour of the young generation.

As we see most of the heinous crimes are committing between the age group of 16-18 years.

Salient Features of Juvenile Justice Act

 This law also deals with the care and protection of the children.

 This law treats all the children below 18 years equally who were conflict with law but

the children who were in between the age group of 16-18 years who commits heinous

crimes they are treated as adults.

 The juvenile who commits a heinous offence is given maximum of three years

imprisonment.

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  No child can be awarded the death penalty or life imprisonment.

 It mandates setting up of Juvenile Justice Boards (JJBs) in each district with a

metropolitan magistrate and two social workers in that one should be a women.

 In case of heinous crime the maximum time for disclose of case is 3 months.

 This also deals with the adoption of a child.

 Divorced/Single men are not allowed to adopt a girl child.

Indian laws have created three categories of persons according to their age. The criminal

liability of an accused depends upon the category in which that person falls. The first of

these is a person below seven years of age. Section 82 of the Indian Penal Code, 18601. The

second category of persons is those who are between the age of seven and

twelve years. Section 832 deals with them and lies down that if an offence is

committed by such a person, it will first have to be ascertained whether the child

has attained sufficient maturity of understanding due to which he can judge the

nature of his alleged conduct and the consequences thereof. The persons between

the age of twelve and eighteen years fall into the third category and if an offence is

committed by such a person, he shall be liable for such offence. However, he

shall not be prosecuted and punished like adult offenders, but would be dealt with

only in accordance with the provisions of the law relating to juvenile justice.

1
Under section 82 of IPC -Nothing is offence below the age of 7 years.
2
Sec.83 of IPC- Nothing is offence age between the age of 7 years-12 years, when maturity of
understanding to judge
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 ACT OF A CHILD

UNDER THE AGE BETWEEN THE BETWEEN THE AGE OF

OF 7 YEARS. AGE OF 7YEARS- 12YEARS-18YEARS.

(NOT LIABLE) 12YEARS (LIABLE)

MATURITY OF NOT MATURITY OF

UNDERSTANDING HE IS UNDERSTANDING HE IS
LIABLE. NOT LIABLE.

HISTORY OF JUVENILE JUSTICE LEGISTLATIONS.

There were much Legislation which have been enacted and drafted in this country consenting

in child with conflict law they are

1. The apprentices Act, 1850.

2. The Reformatting school Act, 1876.

3. The recommendations of the Indian jail committee, 1919-1920.

4. Children Act, 1960, which is the first legislation drafted for the children after

independence in India.

5. Juvenile Justice Act, 1986.

The term juvenile justice emerged from the word Juvenis, in Latin it means Young so a justice

system for the young. Previously the development of juvenile justice in India can be divided

into six phases through reference of treatment of children, legislative developments, judicial

Intervention and other government policies.

Status of Juveniles prior to 1773

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Both Hindu law (Manusmriti) and Islamic law (Sharia) prescribes for maintenance and proper

upbringing of the children and it was the sole responsibility of parents to provide care and

protection to the children and if the families were unable then someone from the community

took care of the children. According to Islamic law if anyone finds the abandoned child and

feels that child would be harmed then he must take care of the child. Study of Manusmriti and

sharia shows different punishment for the children in certain offences 3 like under Hindu law if

a child is found throwing filth on the public road he has to clean the place while an adult has to

pay the fine.

Status of Juveniles 1950-2000

By 1960 many states had established separate systems and laws for juveniles which varied in

terms of definitions, and other procedural requirements and their implementation also varied. In

1960 Union government enacted The children Act 1960, which was applicable to union

territories which were directly administered by the Union government. It was intended to serve

as a model for the state legislations which did a groundwork for the National law passed as

Juvenile Justice Act 1986 acted as uniform law throughout the country. Due to the increase in

juvenile crimes there was a amendment to the juvenile justice act 1986, after the Delhi rape

case due to the demands of the society there was a change in the punishments and the laws have

been made stricter in JJA 2015.

3
kumari, Ved The Juvenile Justice in India: from welfare to rights, New Delhi: OUP. p57
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IMPORTANCES IN JUVENILE JUSTICE ACT

Who is a Juvenile or Child?

A “Juvenile” or ”Child” means a person who has not competed eighteen years of age.

According to JJA, Section 2(k) ”A boy or a Girl under 18years of age is a juvenile”. The age of

a boy child under JJA 1986 was 16 years and a girl child was 18 years of age. The age of a boy

juvenile has increased to 18 years in JJA 2000.

Article 1 of the United Nations conventions on the Rights of the Child, “For the purpose of the

present conventions, a child means every human being below the age of 18 years unless, under

the law applicable to the child majority is attained earlier”.

The UN Convention on the Rights of the child, 1989 are

1. Right to Survival.

2. Right to Protection.

3. Right to Development.

4. Right to Participation.

So currently both boys and girls below 18 years of age enjoy the protection of juvenile

legislation. After increasing the age of the children there is marginally decrease in the IPC

crimes from 1.2% in 1989 to 1.0% in 2005 has also fallen. As we see the children between the

ages of 16years-18years they are committing more heinous crimes where according to the

National Crime Reports Bureau, 2.7% of crimes committed by children are Rape and 2.1% of

crimes are committed by Murder.

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Who is a Juvenile in Conflict with Law

Section 2(I) of JJA,2015 has defined “Juvenile in conflict with law” as a juvenile who is

alleged to have committed an offence and has not completed 18years of age as on the date of

commission of such offence”.

In 4Arnit Das vs. State of Bihar they have raised a question that about “reference to which date

the age of the petitioner is required to be determine for finding out whether he is a juvenile or

not”

After raising this question the Supreme Court with two judge benches was adopted and they

told that crucial date for determining the question whether a person is juvenile is the date when

he is bought before the competent authority. This was widely critiqued. Later they referred to

large bench with five judges for the re petition they have told that the date for deciding whether

he is a juvenile or not is the date when he commenced the crime, Arnit das was not a juvenile

on the date of offence, and the court was not inclined to answer academic questions only.

Juvenile Justice Board:

`When a juvenile in conflict with law are dealt by Juvenile Justice Board not by regular

criminal court.

According to section 4(1) of JJA,” notwithstanding anything contained in the code of criminal

procedure,1973, the state government shall consists for every district, one or more Juvenile

Justice Board for the power and discharge its functions relating to children in conflict with law

under this act”

4
Arnit Das vs. State of Bihar: (2000) 5 SCC 488; 2000 SCC (Cri) 962; AIR 2000 SC 2264; 2000 Cri LJ 2971 (SC).
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This board consists of Three members in this one should a women, cases of juvenile Justice is

dealt by the Metropolitan Magistrate or a Judicial magistrate of First class with at least three

years experience and other two are social workers in that one should be a women.

If the juvenile commits a heinous crime that relates to death penalty or imprisonment then the

JJB will adopt a committee and they will send this case to the children court5 after the

suggestion of board.

The judgement should be completed within 3 months from the date when it appears in JJB.

APPREHENSION:

In juvenile Justice board the word “arrest” is replaced by “Apprehension”. No juvenile should

be kept in jail. As soon as the juvenile commits a crime he has to be apprehension by the police

and he has to kept under special juvenile police unit he should be produced before the court

within 24hours, in case of journey he can be produced as soon as possible.

Detaining a person in custody beyond this period amounts to illegal detaining a person in

custody beyond this period amounts to illegal detention. In Baban Khandu Rajput vs State of

Maharashtra imposed compensation of rs.10000/- upon the state for keeping his for two and

half days without producing him.

Under section 13 of JJA, the police “as soon as may be after the apprehension, inform-The

parents of the juvenile, if he can be found of such apprehension they direct parents to present

him before JJB and the probation officer has to enable him to obtain information regarding him

and his family back ground and this has to be presented before Board for making inquiry.After

the arrest the police should admission in the observation home and whether parents or

guardians and the PO has been informed about the Juvenile’s arrest.

5
Children court means the District court.
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BAIL:

Bail is the release of an accused person pending investigation and/or trail whilst at the same

time ensuring his future attendance in court at the trial stage. The CrPC divides offences into

Bail able and Non Bail able offences. In some specific offences police will only give the bail

and in non bail able offences the accused will apply bail petition in court then the court will

decide whether to give bail or not.

Under Juvenile Justice if the juvenile commits a Bail able or non Bail able offence, he has to be

released under bail with or without surety or placed under supervision of probation officer or to

a fit person who takes care of a juvenile.

when a juvenile 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

such manner as may be prescribed until the person can be bought before a board, when a

juvenile is not released on bail under sub section (1) by the board,it shall make a order sending

him to observation home or a place of safety,as the case may be,for such period during the

pendency of the inquiry the person,as may be specified in the order.

ENQUIRY:

When the juvenile commits a crime he has to be apprehension by the police and keep him in

special police unit. The police has to do enquiry about the crime that the child has committed

crime or not. In case of serious and petty offences the enquiry tome period is 4months and in

case it may extend for more 2months.if the juvenile is below the age of 16years the JJB can

dispose the case. In case of heinous offence if the juvenile is above the age of 16 years the JJB

has to conduct the preliminary assessment with regards to his mental and physical capacity to

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commit such offence. It may pass an order in accordance with the provisions of sub section (3)

of section 186.

Order by JJB when Juvenile in conflict with law:

After the enquiry the JJB can disclose the case. Juvenile who is below the age of 16years who

commits petty and serious offences according to their behaviour the court may pass an order

that:

1. He can be send to home after some counselling to him and his parents.

2. Direct to pay the fine by child and his parents.

3. Direct the child to participate in group counselling and similar activities

4. Direct the child to send to observation home for some period,the period should not

exceed more than 3 years.

In order to that it may pass an order the juvenile to

5. Attend school,

6. Attend vocational training centres

7. Prohibit the child from visiting, frequenting or appearing at a specific place.

Children court can pass an order that after the enquiry the juvenile is above the age of 16years

the juvenile has to be treated as adult, he has to be kept in observation homes until he attends

age of 21years after that he has to be shifted to jail if his time period is more than his age of

21years.

The PO has to give the annual report of a juvenile to court about his behaviour. The juvenile

has to be given counselling, rehabilitation centres.

According to section 26(1) Notwithstanding anything to the contrary contained in any other law

for the time being in force, any police officer may take charge of a child in conflict with law

6
Section 18(3)-it certifies that a juvenile as a adult and transfer the trials of that case to the children court that it
is having the jurisdiction.
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who has run away from a special home or an observation home or a place of safety or from the

care of a person or institution under whom the child was placed under this Act.

(2) The child referred to in sub-section (1) shall be produced, within twenty-four

hours, preferably before the Board which passed the original order in respect of that child, if

possible, or to the nearest Board where the child is found.

(3) The Board shall ascertain the reasons for the child having run away and pass

appropriate orders for the child to be sent back either to the institution or person from

whose custody the child had run away or any other similar place or person, as the Board may

deem fit:

Provided that the Board may also give additional directions regarding any special

steps that may be deemed necessary, for the best interest of the child.

(4) No additional proceeding shall be instituted in respect of such child.

PROCEDURE IN RELATION TO CHILDREN IN NEED OF CARE AND PROTECTION :

The child who need care and protection they can be produced before the Committee by the

following members

1. Any police officer or juvenile police unit

2. Any public servant

3. Child himself

4. Any voluntary or non-governmental organisation or any agency as may be recognised

by the State Government

5. any nurse, doctor or management of a nursing home, hospital or maternity home.

The child has to be produced before the Committee within 24 hours excluding the time

necessary for the journey. it is mandatory that if a child found separate from his parents or

guardian that information should be given to nearest police station or any child welfare

committee or District Child protection unit.

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If the information regarding child under section 32 within the time period such act shall be

regards as offence. If any person commits an offence under section 337 shall liable.

The social investigation should be completed within 15days to pass the final order or it can pass

at the time of produced him.

After the enquiry the committee decides that he is an orphan then they will send the child to the

specialized adoption agency if the child is below the age of 6years. children’s home or to a fit

facility or person or foster family, till suitable means of rehabilitation are found for the child, as

may be prescribed, or till the child attains the age of eighteen years.

Under Section 37 of JJA .

(1) The Committee on being satisfied through the inquiry that the child before the Committee is

a child in need of care and protection, may, on consideration of Social

Investigation Report submitted by Child Welfare Officer and taking into account the child’s

wishes in case the child is sufficiently mature to take a view, pass one or more of the following

orders, namely:—

(a) Declaration that a child is in need of care and protection;

(b) Restoration of the child to parents or guardian or family with or without

Supervision of Child Welfare Officer or designated social worker;

(c) placement of the child in Children’s Home or fit facility or Specialised Adoption Agency

for the purpose of adoption for long term or temporary care, keeping in mind

the capacity of the institution for housing such children, either after reaching the

Conclusion that the family of the child cannot be traced or even if traced, restoration

of the child to the family is not in the best interest of the child;

(d) Placement of the child with fit person for long term or temporary care;

(e) Foster care orders under section 448;

7
. Any person who has committed an offence under section 33 shall be liable to imprisonment up to six months or
fine of ten thousand rupees or both
8
Foster care - Foster care is a system in which a minor has been placed into a ward, group home, or private home of a state-certified
caregiver, referred to as a "foster parent". The placement of the child is normally arranged through the government or a social service agency.
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(f) Sponsorship orders under section 459;

(g) Directions to persons or institutions or facilities in whose care the child is

Placed, regarding care, protection and rehabilitation of the child, including directions

Relating to immediate shelter and services such as medical attention, psychiatric and

Psychological support including need-based counselling, occupational therapy or

Behaviour modification therapy, skill training, legal aid, educational services, and

other developmental activities, as required, as well as follow-up and coordination

with the District Child Protection Unit or State Government and other agencies;

(h) Declaration that the child is legally free for adoption under section 38.

(2) The Committee may also pass orders for —

(i) Declaration of fit persons for foster care;

(ii) Getting after care support under section 46 of the Act; or

(iii) Any other order related to any other function as may be prescribed

If any person or organisation offers or gives or receives, any orphan, abandoned or surrendered

child, for the purpose of adoption without following the provisions or procedures as provided in

this Act, such person or organisation shall be punishable with imprisonment of either

description for a term which may extend upto three years, or with fine of one lakh rupees, or

with both.

Other offences towards children:

When a juvenile in conflict with law the name and details of that juvenile should not be

disclosed by newspapers, media, etc...If anyone discloses he will be punished under section 74

of JJA Section 74 of JJA,”Any person contravening the provisions of sub-section (1) shall be

punishable with imprisonment for a term which may extend to six months or fine which may

extend to two lakh rupees or both”. Whoever, having the actual charge of, or control over, a

child, assaults, abandons, abuses, exposes or wilfully neglects the child or causes or procures

9
Sponsorship
He who intervenes for another voluntarily and without being requested. The engagement which heenters into is only accessory to the principal
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the child to be assaulted, abandoned, abused, exposed or neglected in a manner likely to cause

such child unnecessary mental or physical suffering, shall be punishable with imprisonment for

a term which may extend to three years or with fine of one lakh rupees or with both, if it is

done by the biological parents under some circumstances that punishment will not apply.

Provided further that if such offence is committed by any person employed by or managing an

organisation, which is entrusted with the care and protection of the child, he shall be punished

with rigorous imprisonment which may extend up to five years, and fine which may extend up

to five lakh rupees.

If anyone employes the child or uses him like a bagger then he is liable and he will be

imprisonment upto 5years and fine of 5 lakhs or both. Provided that, if for the purpose of

begging, the person amputates or maims the child, he shall be punishable with rigorous

imprisonment for a term not less than seven years which may extend up to ten years, and shall

also be liable to fine of five lakh rupees.

Any person who sells or buys a child for any purpose shall be punishable with rigorous

imprisonment for a term which may extend to five years and shall also be liable to fine of one

lakh rupees.

APPEAL:

The word appeal means the right of carrying a particular case from an inferior to a superior

court with a view to ascertain whether the judgement is sustainable.

Under JJA, any order passed by the JJB may be challenged in apple before the session court.

The appeal is to be filed within 30days of the JJB’s passing the order. Juvenile can appeal for

only one time he is not attend for second appeal. In some cases the Board or the children court

will appeal to the higher courts to have the better judgements. The power conferred on the

Board by or under this act may also be exercised by the high court and the court before them in

appeal revision or otherwise.

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APPLICATION BEFORE JJB ON BEHALF OF JUVENILE

Different types of applications may be filed before JJB on behalf of juvenile. Such applications

may seek reliefs pending inquiry, or on completion of inquiry, i.e., during the juvenile’s stay in

the special home.

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CASE LAW 1

DR. SUBRAMANIAN SWAMY & ORS

Vs

RAJU THR. MEMBER JUVENILE ... RESPONDENT (S) JUSTICE BOARD & ANR.

On 16th December, 2012 a young lady (23 years in age) and her friend were returning home

after watching a movie in a multiplex located in one of the glittering malls of Delhi. They

boarded a bus to undertake a part of the journey back home. While the bus was moving, 5

persons brutally assaulted the young lady, sexually and physically, and also her friend. Both of

them were thrown out of the bus. The young lady succumbed to her injuries on 29.12.2012.

Five persons were apprehended in connection with the crime. One of them, identified for the

purpose of the present case as Raju, was below 18 years of age on the date of commission of

the crime. Accordingly, in compliance with the provisions of the Juvenile Justice Act, 2000 ( as

amended and hereinafter referred to as ‘the Act’) his case was referred for inquiry to the

Juvenile Justice Board. The other accused were tried in a regular sessions court and have been

found guilty, inter alia, of the offences under Section 376 (2)(g) and Section 302 of the Indian

Penal Code, 1860 (for short “the Penal Code”). They have been sentenced to death by the

learned trial court. Their appeal against the aforesaid conviction and the sentence imposed has

since been dismissed and the death penalty has been confirmed by the High Court of Delhi.

Before the Juvenile Justice Board to whom the case of Raju was referred for inquiry, the

petitioners had filed applications for their impalement to enable them to ‘prosecute’ the

juvenile alongside the public prosecutor.

The petitioners also claimed that, on a proper interpretation of the Act, the juvenile was not

entitled to the benefits under the Act but was liable to be tried under the penal law of the land in

a regular criminal court along with the other accused. According to the petitioners, after an

elaborate hearing, the Board had fixed the case on 25.01.2013 for pronouncement of order on

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the question of maintainability of the application filed by the petitioners and also on their

prayer for impalement. However, insofar as the interpretation of the provisions of the Act for

determination of the question whether the offence(s) allegedly committed by the juvenile is to

be inquired into by the Board or the juvenile is required to be tried in a regular criminal court is

concerned, the Board had expressed its inability to decide the same and had directed the

petitioners to seek a authoritative pronouncement on the said issue(s) from the High Court.

Accordingly, the petitioners had instituted a writ proceeding before the High Court of Delhi,

which was registered as Writ Petition (Crl.) No. 124 of 2013, seeking the following reliefs :-

“ Laying down an authoritative interpretation of Sections 2(I) and 2(k) of the Act that the

criterion of 18 years set out therein does not comprehend cases grave offences in general and of

heinous crimes against women in particular that shakes the root of humanity in general.

That the definition of offences under Section 2(p) of the Act be categorized as per

grievousness of the crime committed and the threat of public safety and order.

That Section 28 of the Act be interpreted in terms of its definition, i.e., alternative punishment

and serious offences having minimum punishment of seven years imprisonment and above be

brought outside its purview and the same should be tried by an ordinary criminal court.

Incorporating in the Act, the International concept of age of criminal responsibility and diluting

the blanket immunity provided to the juvenile offender on the basis of age.

That the instant Act be read down in consonance with the rights of victim as protected by

various fundamental rights including Article 14 and 21 of the Constitution of India.” (sic) “

The High Court by its order dated 23.01.2013 dismissed the writ petition holding that against

the order of the Juvenile Justice Board the alternative remedies available under the Act should

be exhausted in the first instance and in the course thereof the question of interpretation of the

provisions of the Act can well be considered. On the very next day, the Board by an elaborate
20 | P a g e
order dated 24.01.2013 rejected the prayer of the petitioners for impalement in the proceeding

against the delinquent and seeking participation therein. In the aforesaid circumstances, on

19.02.2013, Special Leave Petition (Crl.) No.1953 of 2013 was lodged before this Court

challenging the aforesaid order of the High Court of Delhi.

Writ Petition (Crl.) No.204 of 2013

This writ petition has been filed by the parents of the victim of the incident that had occurred

on 16.12.2012 seeking the following reliefs :

“(i) a Direction striking down as unconstitutional and void the Juvenile Justice (Care

and Protection of Children) Act 2000 (Act No.56 of 2000) to the extent it puts a blanket ban on

the power of the criminal courts to try a juvenile offender for offences committed under the

Indian Penal Code, 1860; and

(ii) a Direction that the Respondent No.2 be tried forthwith by the competent criminal court for

the offences against the daughter of the petitioners in F.I.R. No.413/12, P.S. Vasant Vihar, New

Delhi under sections 302/365/376(2)G/377/307/ 394/395/397/396/412/201/ 120B/34 IPC.”

We have heard Dr. Subramanian Swamy, the first appellant appearing in person and also

representing the other appellants as well as Dr. Aman Hingorani, learned counsel appearing on

behalf of the petitioners in W.P. (Crl.) No.204 of 2013. We have also heard Shri Sidharth

Luthra, learned Additional Solicitor General, appearing for the Union of India and Shri A.J.

Bhambhani, learned counsel appearing for the juvenile respondent No.1–Raju apart from the

interveners appearing in person or through their respective counsels.

Dr. Subramanian Swamy has, at the outset, clarified that he is neither challenging the

provisions of Section 2(k) and 2(l) of the Act nor is he invoking the jurisdiction of the Court to

strike down any other provision of the Act or for interference of the Court to reduce the

minimum age of juveniles fixed under the Act as 18 years. What Dr. Swamy has contended is

that having regard to the object behind the enactment, the Act has to be read down to
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understand that the true test of “juvenility” is not in the age but in the level of mental maturity

of the offender. This, it is contended, would save the Act from unconstitutionality and also

further its purpose. The Act is not intended to apply to serious or heinous crimes committed by

a juvenile. The provisions of Sections 82 and 83 of the Indian Penal Code have been placed to

contend that while a child below 7 cannot be held to be criminally liable, the criminality of

those between 7 and 12 years has to be judged by the level of their mental maturity. The same

principle would apply to all children beyond 12 and up to 18 years also, it is contended. This is

how the two statutes i.e. Indian Penal Code and the Act has to be harmoniously understood.

The provisions of Section 1(4) of the Act which makes the provisions of the Act applicable to

all cases of detention, prosecution and punishment of juveniles in conflict with law, to the

exclusion of all other laws, would be unconstitutional if the Act is not read down. Specifically,

Dr. Swamy contends that in that event the Act will offend Article 14 of the Constitution as all

offenders below the age of 18 years irrespective of the degree/level of mental maturity and

irrespective of the gravity of the crime committed would be treated at par. Such a blanket

treatment of all offenders below the age of 18 committing any offence, regardless of the

seriousness and depravity, is wholly impermissible under our constitutional scheme. The non-

obstante provisions contained in Section 1(4) of the Act as well as the bar imposed by Section

7 on the jurisdiction of the criminal court to try juvenile offenders cannot apply to serious and

heinous crime committed by juveniles who have reached the requisite degree of mental

maturity, if the Act is to maintain its constitutionality. Reliance is also placed on Essa @

Anjum Abdul Razak Memon vs. State of Maharashtra [1] to contend that the purport and effect

of Section 1(4) of the Act must be understood in a limited manner.

Judgement:

The Board is empowered to pass one of the seven dispositional orders u/s 15 of the JJ Act:

advice/admonition, group counselling, community service, payment of fine, release on

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probation of good conduct and placing the juvenile under the care of parent or guardian or a 5

Page 51 suitable institution, or sent to a Special home for 3 years or less. Where a juvenile

commits a serious offence, the Board must report the matter to the State Govt. who may keep

the juvenile in a place of Safety for not more than 3 years. A juvenile cannot be sentenced to

death or life imprisonment.

CASE LAW 2:

Ram Deo Chauhan Vs. State of Assam : (2001) 5 SCC 714; AIR 2001 SC 2231.

In this case a 3-Judge Bench of the Supreme Court did not reduce a sentence of death penalty to

one of life imprisonment, despite dissention from one Judge. The defence led evidence before

the Trial Court to prove that Ram Deo was a juvenile at the time of the offence. The father of

the petitioner was examined as well as the Headmaster to prove the school register that showed

the petitioner to be below 16 years on the date of offence. An associate professor in forensic

medicine who had examined the petitioner for ascertaining his age was called as a Court

witness, in the doctor’s opinion Ram Deo would have been between 15 to 16 years on the

relevant date. This evidence was not able to swerve the majority view; they instead paid

credence to the fact that

(i) On the basis of Ram Deo’s father’s cross-examination, the prosecution calculated the

age of the petitioner as 26 years on the date of occurrence;

(ii) A former employer gave evidence as a prosecution witness that prior to the incident,

the petitioner had told him that he was 20 years old;

(iii) The petitioner had described himself as 20 years old when his statement was recorded

on the date of offence;

(iv) The accused was shown as 25 years 6 months in his statement recorded by the Trial

Court 6 years after the date of incident.

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 The dissenting judgment gives detailed reasons as to why the prosecution’s contention cannot

be accepted. “19. We are unable to act on any one of the materials projected by the prosecution

for the purpose of reaching a conclusion

Regarding the age of the petitioner as on the relevant date. The exercise of hatching or brewing

up possible date or year of birth with the help of scattered answers given by the father of the

petitioner, all during cross examination, is very unsound course to be adopted. At any rate such

an exercise cannot be sustained to the detriment of the person concerned. Nor can I rely on the

testimony of PW-4 who said that the accused told him in 1991 that his age was 20. Such a

statement cannot be regarded as reaching anywhere near the proximity of reliability for fixing

up the correct age of a person. The statement recorded under Section 161 of the Code is not

permitted by law to be use except for contradicting the author of the statement. Hence it is

impermissible to look into that material also. The sheet on which the statement of the accused

was recorded under Section 235 of the Code contains some columns in the prefatory portion;

one among them was regarding the age. The statement of the accused actually starts only after

making such entries in those prefatory columns. Unless the person who filled up such prefatory

columns is examined for showing how he gathered the information regarding all such columns

the entries therein cannot be regarded as legal evidence. At any rate, We cannot proceed on a

presumption that such columns were filled up by the accused himself.” The dissenting Judge

whilst commuting the death sentence to life imprisonment, though agreeing that the “petitioner

did not succeed in proving that that he was aged below 16 years on the date of occurrence”,

went on to say : “12. But I am inclined to approach the question from a different angle. Can

death sentence be awarded to a person whose age is not positively established by the

prosecution as above 16 on the crucial date. If the prosecution failed to prove positively that

aspect, can a convicted person be allowed to be hanged by neck till death in view of the clear

interdict contained in Section 22(1) of the Juvenile Act.”

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Conclusion:

In India we have to improve the punishments for the Heinous offences committed by Juvenile.

As per this act life imprisonment and death penalty should be not be given and the maximum

period for imprisonment is 3 years. Most of the juveniles are School dropouts and they were

influenced by the society. The juvenile Justice should be more effective. Juveniles are seen that

they will be easily influenced by any negative in the society. We have to take proper care about

children.

References:

1. CHILD PROTECTION AND JUVENILE JUVENILE JUSTICE SYSTEM BY

MAHARUKH ADENWALLA.

2. JUVENILE JUSTICE ACT,2015 BARE ACT.

3. INDIAN PENAL CODE.

4. INDIAN KANOON.

5. MANUPATRA.

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 List of Abbreviations:

Anr Another
BCA The Bombay Children Act
CRC The United Nations Conventions on the Rights of
the Child.
CrPC Criminal Procedure Code
IPC Indian Penal Code
JJA Juvenile Justices Act
JJB Juvenile Justices Board
NGO Non Governmental organisational
PO probation Officer
PP Public Prosecutor
UOI Union of India
SC Supreme court

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 List of Abbreviations:

Anr Another
BCA The Bombay Children Act
CRC The United Nations Conventions on the Rights of
the Child.
Cr PC Criminal Procedure Code
IPC Indian Penal Code
JJA Juvenile Justices Act
JJB Juvenile Justices Board
NGO Non Governmental organisational
PO probation Officer
PP Public Prosecutor
UOI Union of India
SC Supreme Court

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