Juveniles, benefits and privileges of: India
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Minor entitled to seek pre-arrest bail: Court
In a significant order, a sessions court has clarified that while the Juvenile Justice Board apparently does not have any jurisdiction to grant protection from arrest, a child in conflict with law apprehending his detention by police is justified in invoking the jurisdiction of the court to protect his welfare. The court granted pre-arrest bail to a 16-year-old boy.
The court said that in the present case, the minor, even if not apprehended or detained by police, is certainly entitled to seek protection under the provisions of the Criminal Procedure Code.
It was alleged that on July 4, the teenager mimicked a differently abled boy. The boy’s brother intervened and that led to an exchange of words. The teenager then allegedly called his family members. While the minor’s mother was accused of slapping one of them, the other family members assaulted them with a bamboo and iron bar. The informant managed to escape. However, his brother was allegedly assaulted by the family members and stabbed in the stomach. The informant said he managed to reach Wadala police station and lodge the FIR.
“Considering the incident of which the applicant was a part, nothing is to be recovered from him nor is there any other ground to even justify denial of bail to him. In such circumstances, it shall be quite reasonable to grant protection from arrest to him,” the court said. It further said that the minor is not to tamper with the prosecution witnesses and evidence in any manner. Other adult accused named in the case were granted relief earlier.
The victim’s family opposed the minor’s plea and submitted that no protection from arrest can be granted to the applicant and the Juvenile Justice (Care and Protection of Children) Act bars the jurisdiction of the sessions court on this aspect.
Juvenile Justice Act 2015
More powers to DMs in JJ Act on adoption issues
Amendments To Law Get Cabinet Nod
The Union cabinet approved amendments to the Juvenile Justice Act 2015 to give district magistrates the power to issue adoption orders and monitor functioning of various agencies responsible for implementation of the Act.
The divisional commissioner will have the power to decide appeals with regard to adoption cases. The government says it will enable “speedy disposal of adoption cases and enhance accountability”. Currently adoption orders are issued by the district courts.
Women and child development minister Smriti Irani said among others, the proposed amendments categorise previously undefined offences as ‘serious offence’ where the sentence is more than seven years but no minimum sentence is prescribed or a minimum sentence of less than seven years is provided. At present, the Act has three categories of petty, serious and heinous crimes. It is also proposed to expand the definition of “Child In Need of Care and Protection” to include victims of trafficking, drug abuse, abandonment by guardians and those rescued from child labour under the National Child Labour Project.
It is also proposed to bring the district child protection units under the jurisdiction of the DM. Irani said the amendments aim to strengthen child protection.
,… but inadequacies remain
Old enough to rape, but not to go to jail
Bagish K Jha
Jul 12, 2021, 11:13 IST
In the south Haryana district bordering Rajasthan, this was manifest when six boys were taken to an observation home in the second week of June – all of them pre- or barely teens, aged between 11 and 13. The boys had allegedly sexually assaulted someone who they would hang out with all the time. The kids lived in the same neighbourhood, played together and shared their childhoods.
A complex web
It’s because of factors that probes in juvenile crimes can be extremely complex, experts say. Of cardinal importance is understanding if there was intent, says Manglesh Choubey, chief judicial magistrate of Faridabad and former principal magistrate of the JJB in Gurgaon.
“Intention is important to hold anyone guilty under the Juvenile Justice Act, and unless there is evidence, it is presumed that a minor involved in crime does not have intention. The JJ Act does not have provision for anticipatory bail and one reason is that all offences are to be treated as bailable under this Act unless they fall within exceptions under Section 12,” explains Choubey.
Section 12 deals with bail for a juvenile offender and lists the reasons under which it may be denied – when there is reasonable ground to believe that release may bring an accused into association with a known criminal, expose an accused to moral, physical or psychological danger or defeat the ends of justice.
Counsellors and legal experts agree that the sociological side requires close examination alongside the provisions of law in cases where juveniles are accused of serious crimes, including sexual assault.
Aparna, a counsellor with the District Child Protection Unit of Faridabad, says multiple factors are responsible for pushing children
into sexual crime – like curiosity, lack of awareness, poor parenting, unregulated exposure to the internet and peer group influence.
“Children are curious by nature and they tend to repeat and copy what they see. A minor’s mind is not mature enough to differentiate between good and bad. Hence, the role of parents is very important,” says Aparna. Recalling a counselling session with a 15-year-old boy accused of a sexual crime, she says the minor was friends with older boys, who boasted about their sexual experiences with their girlfriends, and “committed a sexual crime just to experience how it feels”.
Gyanwati, a former member of the JJB in Gurgaon, says children experiment and in the absence of proper education or guidance, slide into crime. One of her many counselling sessions was with a 9-year-old boy who had tried to sexually assault a girl and attacked her with a stone. “When she resisted and tried to escape, he hit her with the stone and then tried to rape her. The girl sustained serious injuries. During counselling, the boy said he had seen his parents have sex and wanted to try it,” says Gyanwati,
adding the boy also revealed that he had tried the same with two other girls, who were stronger and escaped. “He had no remorse as he thought if elders could do it, so could he,” she says.
What’s the right reform?
In 2015, the JJ Act was amended to include a provision for juvenile offenders in the 16-18 age bracket to be tried as adults under certain circumstances.
But the law continues to face criticism. On June 25, while hearing a petition by a 15-year-old boy accused of raping a 10-year-old girl – who bled profusely after the assault and required a blood transfusion – the Indore bench of the Madhya Pradesh said the existing law was “ totally inadequate and ill equipped” to deal with heinous crimes committed by minors below the age of 16.
Saying no lessons had been learnt from the Nirbhaya case, Justice Subodh Abhyankar observed that the law continued to give a “free hand to delinquents under the age of 16 to commit heinous offences”.
Juvenile Justice Act , ambit of
HC: Quizzing minors in sedition case is a violation
The Karnataka high court said the police questioning of students of Bidar’s Shaheen Primary and High School last year in a case of sedition is a violation of the rights of children and against the Juvenile Justice Act. It asked the state government to consider issuing directions to police throughout the state to ensure it does not happen again.
A division bench pointed out that the photographs placed before the court from March last year shows schoolchildren (two boys and a girl) being interrogated by five police personnel — four of them in full uniform and at least two carrying firearms. The bench noted that deputy superintendent of police Basaveshwar had not dealt with the photos in his affidavit filed at the same time last year. “Prima facie this is a serious case of violation of rights of children and provisions of Juvenile Justice Act. We direct the state to respond by filing a response stating on record what action has been initiated against the police official,” the bench said.
The court noted that only plain clothes police personnel can interact with kids, and where a girl is involved, women personnel should be brought in. It asked the DG and IGP to nominate a higher level officer to look into the violations and file a response by September 3, before the next hearing in the case.
Acting on a complaint filed by an activist, police had booked a sedition case against the Shaheen group of institutions on January 26 last year over the staging of a play against the CAA on January 21.
2017-19: juvenile home keepers faced 1.3k cases
As many as 1,340 cases of crime against children by caretakers/in-charges of juvenile homes were registered across the country between 2017 and 2019. The government has informed Parliament that as per the National Crime Records Bureau (NCRB) data, 412 cases of such offences were registered in 2019. The number of convictions stood at 48.
The Women and Child Development ministry has also shared NCRB data for 2017 when the number of such cases registered was 278 and the number of people convicted was 13. In 2018, 650 cases were registred and 14 people convicted. Meanwhile, in a written response to a question in Rajya Sabha on Pocso e-Box — an online complaint box for reporting child sexual abuse, the WCD ministry shared that 356 complaints have been received on this platform during the last three years and the current year (till June, 2021). Out of the 356 complaints, 124 complaints were received in 2020-21.
Juveniles, determination of age
Don’t focus on age to define juveniles: HC
By Ajay Sura, TNN, 2013/03/30
Chandigarh:Against the backdrop of a raging debate on the age of juvenile offenders following the Nirbhaya rape, the Punjab and Haryana high court has held that benefits and privileges of juveniles should not be accorded to minors involved in monstrous crimes merely because of their biological age. Instead, it should be premised on the ability of offenders to understand the consequences of their actions.
“It is the advancement of the mental faculty of juvenile accused, which would suggest whether he is an adult or a juvenile,” the HC held.
It recommended a specialized examination of minors by experts who can evaluate their ability to segregate good and bad to show their maturity or immaturity to answer for the deeds.
Justice Mahesh Grover of the Punjab and Haryana high court passed this judgment while dismissing the bail petition of a minor, a Class VII student, who had allegedly raped two girls of Class IX and X of his own school.
The verdict came and a copy of the judgment was made available.
School records can’t be taken as certificate of a person’s age: HC
It and is factors maturity related psychological to growth - ly and socially, but not entirely biologically, that would give an insight as to whether a person is a child or an adult, Justice Mahesh Grover of the Punjab abd Haryana HC has ruled.
“The courts ought not automatically assume that the statutory definition would confer the halo of a juvenile and give him an undeserving protection and benefits,” the court observed.
“In a country like ours the age given in the school certificate or the records of the school would only speak of an age imaginatively conjured by the parents at the time of admission. Even though it may form a persuasive piece of material, but certainly no credence and outright acceptability should be afforded to it.”
In this case, the juvenile from Chuchakwas village in Jhajjar district in Haryana had kidnapped the two girls in October last year. Both the victims and accused remained untraced for 10 days, during which the accused had allegedly raped both the girls at different places. While dismissing the bail plea of the accused, HC has asked the Juvenile Justice Board to consider the case in view of the observations.
Maintaining that no stigma should be attached to a person for offences committed as a child, the Supreme Court said the criminal record of a juvenile could not be an obstacle for getting a government job and other benefits after the person becomes an adult.
A bench of Justices U U Lalit and Vineet Saran said the criminal record of a child must be treated as erased except in special circumstances to allow the person to start life afresh without carrying the burden of his past. The order will pave the way for such people to obtain government jobs, which are not given to those with criminal records.
The bench passed the order while rejecting the Centre’s stand that such persons could not be given government jobs because of their criminal past. The government had refused to give appointment letter to a man for the post of sub-inspector in Central Industrial Security Force (CISF) even after he qualified the written examination on the ground that a criminal case was lodged against him for teasing a girl when he was a teenager.
Making it clear that the stigma of a child’s criminal past could not be allowed to carry on for the rest of his life and must be treated as erased, Justice Saran said, “The thrust of the legislations, Juvenile Justice (Care and Protection of Children) Act of 2010 and 2015, is that even if a juvenile is convicted, the sa- me should be obliterated so that there is no stigma with regard to any crime committed by such person as a juvenile.”
Dismissing the Centre’s plea, the SC directed it to appoint the man as sub-inspector in CISF. In this case, an FIR was lodged against the man for teasing a girl in 2009 when he was a minor but he was acquitted in 2011 after the girl and her parents did not depose against him. He had cleared the written exam in 2016 but his appointment was cancelled on the ground that an FIR was filed against him.
PUNE: The Bombay high court has granted the state government's plea seeking three months for constituting the district advisory boards, child protection units and inspection committees, among others, which are mandatory obligations under the Juvenile Justice (Care and Protection) Act, 2000.
A division bench of Chief Justice Mohit Shah and Justice D Y Chandrachud while granting the plea on September 30 directed the government to take assistance of the United Nations Children's Fund (Unicef) in the implementation of various mandatory provisions under the act.
The bench also asked the government to set in motion the process for framing rules on the lines of the central government's model rules for implementation of the act.
The bench was hearing a suo motu public interest litigation (PIL) in the wake of a media report published on August 24, highlighting the plight of the inmates at the Satkarma Balgriha, a home for mentally disabled children, at Shahpur in Thane district.
Five of these inmates, aged between nine and 12, had died of severe malnutrition between April 9 and July 24. The media report also highlighted the utter unhygenic conditions that the children were made to live in.
Taking a serious cognisance of the matter, the high court had issued notices to the state government; the Child Welfare Committee, Thane and the Balgriha authorities on September 3.
An affidavit-in-reply filed by the deputy commissioner (child welfare) at the Pune-based commissionerate of women and child welfare, confirmed the accuracy of the media report. The 18 surviving children have been shifted to other homes in Airoli and Ullhasnagar.
When the PIL was first heard on September 16 by the then bench of Justices D Y Chandrachud and R P Sondurbaldota, the state government came in for severe criticism. There is a "complete breakdown" of the regulatory machinery in the state designed for the protection of children.
"It would be necessary to note that many of the salutary provisions, which have been made in the Act have not been implemented by the state," the bench then remarked. It went on to list out these provisions under the act.
A subsequent report on the inspection of the orphanage by Asha Bajpai, appointed as the amicus curiae (friend of the court), revealed that two girls at the Balgriha were subjected to sexual abuse and one of them was suffering from post-traumatic stress and was in need of counselling and theraupatic support. Bajpai submitted this report to the court on September 30. The two girls have been shifted to the KEM hospital.
Bajpai brought to the court's notice that Unicef had expressed its willingness to assist the state government in the process for implementation of the act. Additional government pleader Jyoti Pawar expressed no reservations and the court directed the government to avail Unicef's help.
In heinous crimes, onus is on `juveniles' to prove they're under 18: SC
The Times of India, May 13, 2016 In an important ruling, the Supreme Court said a juvenile accused of heinous crime would be tried as an adult if the court found documents produced to support that heshe was below 18 years when the offence was committed turned out to be unreliable.
The ruling came from a bench of Justices A K Sikri and R K Agrawal, which sent Parag Bhati, accused of murdering a man in Greater Noida in 2011, to face trial as an adult. Bhati was found to have forged school documents to show that he was below 18 years at the time of the crime.
“When the accused commits a grave and heinous offence and thereafter attempts to take statutory shelter under the guise of being a minor, a casual or cavalier approach while recording as to whether an accused is a juvenile or not cannot be permitted as the courts are enjoined upon to perform their duties with the object of protecting the confidence of the common man in the institution,“ Justice Agrawal, writing the judgment for the bench, said. Justice Agrawal, writing the judgment for the bench, said if there were documents unambiguously showing that the accused was below the age of 18 years on the date of the crime, he would be entitled to special protection under the Juvenile Justice (Care and Protection of Children) Act, 2000.
Doubtful evidence about his age being below 18 years could not come to the rescue of a person involved in a grave and heinous offence committed and given effect to in a well-planned manner, reflecting his maturity of mind rather than innocence, and indicating that plea of juvenility was being used more as a shield to dodge or dupe the arms of the law, the court said.
The bench upheld the Juvenile Justice Board's decision to send Bhati to face trial for murder as an adult.
Radiological examination is useful, not conclusive: SC
Holding that a medical test does not give an accurate finding regarding the age of a person, the Supreme Court has held that an accused cannot be declared a juvenile solely on the basis of ossification test result and allowed to evade a jail term.
A bench of Justices AK Sikri and R Banumathi said that a blind and mechanical view regarding the age of a person could not be adopted solely on the basis of medical opinion, and it refused to give credence to a report of AIIMS medical board according to which two murder convicts were minors at the time of committing a crime in 1994.
“Courts have always held that the evidence afforded by radiological examination is no doubt a useful guiding factor for determining the age of a person, but the evidence is not of a conclusive and incontrovertible nature, and it is subject to a margin of error. Medical evidence as to the age of a person, though a very useful guiding factor, is not conclusive and has to be considered along with other circumstances,“ it said.
“It is a well-accepted fact that age determination us ing ossification test does not yield accurate and precise conclusions after the examinee crosses the age of 30 years, which is true in the present case,“ the court said.
The court was hearing a plea of two convicts who, along with four others, were convicted and sentenced to life imprisonment in a murder case. The two convicts never raised the defence of their juvenility during the hearing in trial court and high court.When the matter reached the Supreme Court in 2014, the two convicts told the court that they were minors at the time of committing the crime and could not be sent to jail.
Although the apex court agreed to examine the plea of the two convicts, it rejected the appeal of four other convicts and upheld their life imprisonment. As there was no documentary proof of their age, the court had asked AIIMS Delhi to conduct a medical test to ascertain their age.
The report said that their age was between 35-40 years in May 2016. As per the procedure to calculate the age at the time of incident, their age would have been around 15 years. But the bench refused to rely on the findings saying “Court should not take a hyper-technical approach while appre ciating evidence for determination of age of the accused.“
The court pointed out that the accused were involved in about two dozen criminal cases before they committed the murder and that they were produced in lower courts in many cases.It said that had they been minors then the lower court would have treated them accordingly and not as majors.
“Had it been so, the appellant would have been considered as children by their appearance. They would have been dealt with accordingly by juvenile court and the matters would not have been kept pending till this date.This in our view is yet another reason that opinion of medical board cannot be relied upon,“ the bench said.
Later lives of former delinquents
Juvenile case can’t stunt job prospect in adulthood
There is relief for thousands of children in conflict with law and facing discrimination in securing a job with a recent Allahabad high court judgment ruling that the stigma of facing a criminal case as a juvenile cannot stunt someone’s employment prospects in adulthood.
Rajiv Kumar, as a 10-year-old boy, had faced criminal prosecution in 1994 for various charges under IPC and SC/ ST (Prevention of Atrocities) Act. He was acquitted in 2002. In 2006, a 22-year-old Kumar was selected and appointed as constable in the provincial armed constabulary (PAC) in UP government. But a year later, his appointment was cancelled on the ground of non-declaration of the criminal case he faced as a child. Many years later, Justice Ajay Bhanot in a 90-page judgment undertook a detailed study of rights of children and referred to domestic as well as international laws while ruling in favour of Kumar. The HC judge concluded Kumar be reinstated in service with full back-wages and consequential benefits like seniority and other financial benefits from August 26, 2006, when he was appointed as constable in PAC. Justice Bhanot said: “Details of past prosecution faced by the petitioner as a child were not valid criteria nor a lawful consideration to judge his suitability for appointment. Such criteria were arbitrary and illegal. The declaration (that no criminal case registered against him) made by the petitioner was not a relevant consideration in his appointment. Hence, even falsity of the declaration made by the petitioner could not invalidate his appointment.”
Giving a general finding on preventing a bleak future in employment faced by children in conflict with law, the HC said, “In public employment, past prosecution of a child in a criminal case is often made a criteria for forming an opinion of the child’s criminal antecedents. Such criteria revives the taint of a past prosecution to blight the prospects of future employment... Consideration of a past prosecution of child in a criminal case for any purpose or in any discourse, will create a perpetual disability for the child,” the judge said.
Rights of juvenile delinquents
Confession extracted from minor
TIMES NEWS NETWORK
New Delhi : Trying to extract a confession about an alleged crime from a juvenile while conducting the psychological assessment is “unconstitutional”, the Delhi high court has said. HC noted that due to such a move, a “presumption is raised at the pre-trial stage itself that the child has committed the offence”, and securing the confession of the child in conflict with law is beyond the scope of the preliminary assessment to be prepared under the Juvenile Justice Act.
A bench of Justices Mukta Gupta and Anish Dayal made the comments while examining a preliminary assessment report prepared by a psychologist. HC said that the report clearly revealed that a confession was sought to be extracted from a child as to how the offence was committed and the reasons for it.
“This manner of seeking a confession from the child is unconstitutional and beyond the scope of a report of the preliminary assessment to be prepared under Section 15 of the JJ Act,” HC noted in a recent order. Section 15 of the JJ Act provides that in case a child, between 16 to 18 years of age, has committed a heinous offence, the Juvenile Justice Board may conduct a preliminary assessment to assess the maturity level of the child, his mental and his physical capacity to conduct such an act.
HC further observed that under the Act, the probation officer is required to fill out a form that relates to the preparation of the social investigation report for children in conflict with the law. It said the two questions regarding the alleged role of the child and reason for committing the offence were “incorrect as a presumption is raised at the pre-trial stage itself that the child has committed the offence”. It was hearing a reference relating to the issuance of guidelines to be followed by juvenile justice boards in conducting preliminary assessments before sending a minor for trial as an adult. It had earlier allowed a plea by NGO HAQ Centre for Child Rights to intervene in the matter.
Juvenility can be invoked even after conviction: SC
The Supreme Court reiterated that the defence of juvenility can be raised even after conviction and asked the Uttar Pradesh government to examine juvenility claims of 23 prisoners in Agra jail, few of whom have already spent 20 years behind bars.
A bench of Justices Indira Banerjee and J K Maheshwari said delay in raising the juvenile claim cannot be a reason to dismiss the plea and asked the state governemnt to verify their claim within a month.
A bench headed by Justice Banerjee had passed a similar order in July and granted interim bail to 13 prisoners of Agra central jail who spent around 20 years in prison and were not released despite them being recently declared juvenile at the time of committing offence.
The convicts had not taken the defence of juvenility due to ignorance during the trial in which they were convicted and it came to light when their ages were examined on the direction of the Allahabad high court. The high court had passed the direction in 2012 and ordered the Juvenile Justice Board to hold an inquiry for determination of the age of such prisoners who were languishing in different jails in the state who were alleged to be juvenile at the time of committing offence.
The Board after holding inquiry passed orders on various dates since 2017 declaring several prisoners juveniles at the time of commiting offence and 13 of these prisoners in Agra jail were also declared juvenile. They, however, continued to languish in jail as the state government did not take any action even after the Board declared them juvenile.
Never disclose juvenile’s identity: HC
Identity of a person, against whom a criminal case was lodged when he was a minor, should not be disclosed at any stage of life as it defeats the purpose of juvenile justice law, the high court has held.
The court said that object of the Juvenile Justice (Care and Protection of Children) Act is to ensure that no stigma is attached to a juvenile in conflict with lawand a minor is extended a protective umbrella under the enactment.
A bench of justices Hima Kohli and Rekha Palli made the observations in a case where a constable was removed from service in the Reserved Police Force (RPF) by the Railway Board on the ground that he had not disclosed pendency of a criminal case against him for an incident that took place when he was 12-years-old.
Rights of juveniles implicated in heinous crimes non-negotiable: HC
Court Says Rights Of Minors Non-Negotiable
The high court has expressed displeasure and pain with the way a sessions court dealt with a murder case where a juvenile was forced to remain behind bars for nine years.
A bench of Justices Gita Mittal and P S Teji reminded everyone that rights of children are completely non-negotiable even if they are implicated in a heinous crime, and acquitted the juvenile, ordering his release if not wanted in any other case.
HC also took the case as an example to underline the need to train trial court judges on the law relating to juveniles, saying the sessions court had dealt with the matter while being “completely oblivious“ of the valuable rights of a minor under the Juvenile Justice (Care and Protection) Act.
The bench ordered the HC registry to send a copy of its order to director (Academics) of Delhi Judicial Academy for designing refresher course on juvenile justice and compiling the material for it.
“This design shall be sent to every district judge, who, if possible, would organise and implement the training at the district court complexes for expediency and to save the time of judges,“ the court directed. HC was pained to note that the minor was arrested on January 13, 2007 and since then was in incarceration.He underwent over nine years of imprisonment which was much more than the maximum sentence permissible under the JJ act.
“The SHO of the police station concerned, who having conducted the age inquiry , would have known about it. Yet, he also made no effort to inform the trial court about the same,“ the bench noted. “In any case, the appellant (minor) could not have been kept in the jail meant for adult prisoners but was required to be kept in the observation home, that too only for the maximum period of three years,“ it said.
HC's verdict came on the application of the juvenile who approached the court seeking to declare him a juvenile.
The Times of India, May 13 2015
Most juveniles in conflict with law from poor families
With the Juvenile Justice (amendment) Bill expected to be taken up by Rajya Sabha, an independent study across observation homes and special homes in four states has traced the profile of a juvenile delinquent. Preliminary data collated by NGO Butterflies reveals a “juvenile caught in the country's legal system is a working child, from a disturbed family background who has been associated with petty crime. The children are overwhelmingly from economically and socially backward sections of society.
The socio-economic pro file is based on an ongoing study of 605 children from homes in Delhi, Odisha, Tamil Nadu and Kerala.
The study found that majority of the parents were labourers or from service oriented occupations like tailoring, construction, carpentry while 63.2% of the children were engaged in some work or the other. “The preliminary data suggests that it is only the children of low economic and social background get caught while those in the middle and high income group are able to settle outside the judicial process, Rita Panicker from Butterflies said.
About 16.8% children were deprived of any formal schooling while 50.8% studied up to primary level. Not surprisingly, nearly half the parents did not have formal schooling. In another significant revelation 33.4% of the children came from families where one or both parents had died or had step families, separated families, were abandoned or lived on the street.
Socially too the children were found to be disadvantaged. Out of the 442 children who knew their caste 90% belonged to backward classes underlying the vulnerability experiences by marginalized communities. Scheduled caste accounted for 20.4%, scheduled tribes for 4.6% while OBCs were 40.8% of the children studied.
Bengal: offenders can serve rehabilitation at home
Juvenile offenders charged with non-heinous offences in West Bengal will soon be able to stay with their parents while serving out their rehabilitation programme instead of having to spend time at detention centres.
The state began a multi-stakeholder consultation with Unicef and West Bengal Commission for Protection of Child Rights to introduce the concept called “diversion” that was brought into the Juvenile Justice Act through an amendment in 2021 to shield minors from the regular justice system, reports Aheli Banerjee. The scheme will be rolled out after a pilot project was held for three-and-a-half years in Jalpaiguri, S 24 Parganas and Murshidabad.
Kolkata : Bengal is taking a legal “diversion” to allow juvenile offenders charged with non-heinous offences be with parents while serving out their rehabilitation programme, instead of the typical practice of keeping young delinquents at a detention centre.
The state started “a multi-stakeholder consultation” with Unicef and West Bengal Commission for Protection of Child Rights (WBCPCR) to introduce the concept called “diversion” that was brought into the Juvenile Justice Act through an amendment in 2021 to shield minors from the regular justice system. “FIRs will not be lodged against children who have committed petty and serious offences… The police will lodgegeneral diaries and inform the juvenile justice board,” state women and child welfare minister Shashi Panja said.
The amended rule says if children of 16 years or below “committed a petty or serious offence”, they “can go home after advice or admonition by following appropriate inquiry and counselling to such child and his . . . guardians”.
The rule spares them fromgoing to correctional facilities, but not those charged with heinous crimes like murder. Petty and serious offences carry sentences of maximum three years and between three and seven respectively. Theft and sexual offences form the bulk of such crimes.
The aim is to restore children to their families and link them with welfare services and alternatives to detention,the minister said. “When children are made to stand trial for minor crimes, there’s a lot of psychological trauma and the chance of reformation goes away,” Panja said. “They often become repeat offenders. ”
The new method of giving juvenile offenders a chance to mend their ways was rolled out recently across Bengal, after a pilot of three-and-a-half years in Jalpaiguri, South 24 Parganas and Murshidabad. WBCPCR chairperson Sudeshna Roy said: “It is essential to use diversion from judicial proceedings as a solution in such cases,” she said.
Unicef Bengal chief Mohammad Mohiuddin said: “It’s not enough to divert children from police stations and juvenile justice boards. We have to ensure essential services, follow-ups and psycho-social support and care to the children. ”
What after a juvenile criminal turns adult?
'3-Year Term Holds Even If Accused Turns Adult In A Year'--SC
SC had settled issue of ‘adult’ in juvenile home
Said 3-Yr Term Holds Even If Accused Turns Adult In A Year
Smriti Singh TNN
The Times of India 2013/09/01
New Delhi: With the Juvenile Justice Board (JJB) sending the Nirbhaya [rape] case [of 16 Dec 2012] juvenile accused—now an adult — to a reformatory home, the debate surrounding the fact that he cannot be kept in a reformatory home for minors as the JJ Act does not allow adults to be kept with juveniles has been put to rest.
Just a month before the JJB verdict, an order passed by Supreme Court helped in clearing the doubts surrounding the status of the juvenile before the law and where he could be kept once he attained majority. While deciding the writ petition which sought bringing down the age of the juvenile to 16 years, Supreme Court had also dealt with the issue of the provision to keep a person in a juvenile home after he attains majority during the pendency of his trial.
What happens to a juvenile found guilty of a heinous offence when he turns adult?
“One misunderstanding of the law relating to the sentencing of juveniles needs to be corrected. The general understanding of a sentence that can be awarded to a juvenile under Section 15 (1)(g) of the Juvenile Justice (Care and Protection of Children) Act, 2000, prior to its amendment in 2006, is that after attaining the age of 18 years, a juvenile who is found guilty of a heinous offence is allowed to go free…It was generally perceived that a juvenile was free to go, even if he had committed a heinous crime, when he ceased to be a juvenile,” observed the bench, which was presided over by the then Chief Justice of India, Altmas Kabir.
The bench said that the “understanding” of the situation needed to be clarified in the light of the 2006 amendment in the JJ Act. “The amendment now makes it clear that even if a juvenile attains the age of 18 years within a period of one year, he would still have to undergo a sentence of three years, which could spill beyond the period of one year when he attained majority,” the bench observed in its July 17 order.
This clarification by the apex court settles the debate as well as the law surrounding the juvenile delinquent, who attain majority during the pendency of the trial.
Earlier, if found involved in the crime after he turned 18, a juvenile could not be kept in the juvenile correction home or any other reformatory home for minors as the Juvenile Justice (JJ) Act did not allow adults to be kept with juveniles in correction homes. At the same time, the juvenile who had attained majority could not be transferred to Tihar Jail as the law did not allow such persons tried under the JJ Act to be kept in jail meant for adults.
2019/ Youth gets life term for crimes committed as minor
In perhaps the first instance in the country, a 19-year-old youth from Hyderabad has been sentenced to life imprisonment for sodomising and murdering a 10-year-old boy when he was a minor. He was convicted by additional metropolitan sessions judge Kunchala Suneetha, who is also special judge for cases under the Protection of Children from Sexual Offences (POCSO) Act.
The convict was 17 when he had committed the crime in 2017 by luring the child to the top of a government school building on the pretext of playing with him. He then sodomised him and killed him by hitting him on the head with an iron rod.
Trying juvenile offenders as adults
HC guidelines: 2023
Ahmedabad : The Gujarat HC has established guidelines for theJuvenile Justice Board and children’s courts when determining whether a juvenile offender should be tried as an adult and whether the case should be transferred to a regular criminal court.
The ruling, made by Justice Gita Gopi, came about during the hearing of an appeal by a juvenile delinquent from Vadodara, who was accused of carrying out a robbery with other people. Both a Juvenile Justice Board (JJB) and a children’s court had ini tially decided that the accused, who is under 18 years old, should be tried as an adult.
The juvenile offender, represented by advocate Nisarg Jain, appealed to the HC. After reviewing the case, the HC overturned the decisions made by the children’s court and the JJB. The HC ordered the children’s court to reconsider whether the juvenile offender should be treated as an adult, considering the guidelines provided by the National Commission for Protection of Child Rights (NCPCR) along with the Model Rules 2016.
The HC clarified that under Section 15 of the Juvenile Justice Act, a sessions judge is not obligated to rely solely on the reports of psychologists or medical specialists obtained by the JJB. Instead, they can independently seek assistance from experienced psychologists and medical experts.
The HC said that the determination of whether a juvenile case should be transferred to an adult court depends on various factors, including the child’s physical and mental capacity to commit the offence, the circumstances in which the child committed the offence, and their ability to understand the consequences oftheir actions.
Juvenile Justice Board: Try teenager as adult: 2016
The Times of India, Jun 05 2016
In probably the first case of its kind, the Juvenile Justice Board has said a teenager who allegedly ran over a 32-year-old marketing executive, Siddharth Sharma, in the city while driving his father's Mercedes can be tried as an adult. The board gave this decision, ruling that the offence allegedly committed by him was “heinous“.Transferring the case of the boy -who became an adult four days after the incident -to a city court, the board held that the circumstances show the teenager was “mature enough“ to understand the consequences of his act and to think of ways to escape from lawful punishment for the offence. The incident had happened in north Delhi's Civil Lines area on April 4.
The board rubbished the defence's claim that the alleged offence of 304 IPC (culpable homicide not amounting to murder) -which enta ils a maximum punishment of 10 years' imprisonment -is not made out against the boy . This is significant because according to section 2(33) of the new JJ Act, “heinous offences“ include the offences for which minimum punishment under IPC or any other law for the time being in force is imprisonment for seven years or more.
In a five-page order, the board observed that section 304 IPC has been “rightly invoked“ against the teenager. If tried as a minor, the maximum penalty the boy could get is three years at a reform home. This is, perhaps, the first case in the country in which a minor accused could be tried as an adult after the amended juvenile justice law was implemented in January this year. This means the boy will be tried by a sessions court which hears cases of serious crimes against adult accused. However, he could still get some relief from the court as the new JJ Act has a provision for the court to take a relook and decide whether the teenager is to be tried as an adult or not. If it decides against it, it will send the case back to the Juvenile Justice Board (JJB).
This JJB order can also be appealed against, and the boy's counsel said he would soon challenge it in a sessions court. While the boy's family expressed disappointment over the order, victim Sharma's family said it was satisifed, stressing that they were fighting to set a precedent so that the killing spree by kids would stop.
The JJB arrived at its decision after examining the boy's physical and mental ability and after hearing lengthy arguments on the police's plea, which was strongly opposed by the teenager's counsel, Rajiv Mohan, who had argued that the main purpose of JJ Act is to ensure a juvenile's welfare.The JJB also relied on a May 25 report of a clinical psychologist regarding the boy .The report said the boy was in no manner lacking the mental and physical capacity to commit the alleged offence.
Referring to the report in its order, the JJB said it indi cated the accused “has a mature mind although he has immature problem-solving skills.“ According to sources, the JJB also observed that the teenager gave “measured, inadequate and evasive replies“ to the psychologist.
The boy's past conduct of violating traffic regulations and the manner in which he allegedly chose not to help the victim after the accident also made the JJB recommend his trial as an adult.“Keeping in view the past conduct of traffic violations by the boy , high speed of his car and the fact that he pro duced his driver as the person driving the Mercedes when it was he who drove the car...clearly indicate that he is capable of understanding what he is doing,“ said sources, quoting the order.
The Board said the fact that the accused fled after the accident clearly shows that he understood the offence he is alleged to have committed. “On the date of the incident, he had the ability to understand the consequences of the offence. He drove very fast and dangerously , despite warnings by his friends, who were co-occupants of his car at the time of incident,“ the board said in its order. The circumstances collectively indicate that he was indifferent towards life and safety of other users of the road but mature enough to think of ways to escape from lawful punishment of the offence,“ the order read.
Welcoming the order, additional public prosecutor Atul Shrivastava said the case will become a milestone in criminal history . However, Mohan accused the police of wrongly invoking section 304 in the case “just to make it a heinous offence“ and said that the allegation would not stand trial as ingredients of 304 are clearly missing in this case.
Stating that he would challenge the order, Mohan said, “The JJ Act says that the past conduct of the minor cannot be treated as a stigma, but the JJB, in this case, has relied on the minor's past conduct. This is purely an accident case.304 IPC was invoked by police without any basis and just to make it a heinous offence.“
House Panel refuses to try juveniles as adults
Feb 26 2015
A parliamentary panel has shot down the government’s move to try juveniles — between 16 and 18 years of age — who have committed heinous crimes as adults on grounds that it is discriminatory, in contravention of the UN Rights of Child and in violation of Article 14 that ensures all are equal in the eyes of law. The committee was unimpressed by the women and child development (WCD) ministry’s contention that there had been a rapid increase in juveniles, aged 16 to 18, committing crimes like rape, murder and acid attacks. It has asked the ministry to review the amendments and rename the law as the word “juvenile’’ has a negative connotation.
There had been a series of cases, including the Nirbhaya gang rape, Shakti Mills rape case and others, where juveniles were involved and got away with a maximum of three years in a reformatory home. The amendments to the Juvenile Justice Act were proposed by the then UPA government in view of the public outrage after the Nirbhaya gang rape in December 2012.
WCD ministry officials argued that National Crime Records Bureau (NCRB) data revealed that the number of children apprehended for heinous crimes, especially in the age group of 16-18 years, had gone up significantly in recent times. From 531 murders in 2002, the figure had gone up to 1,007 in 2013 while for rapes and assaults, crimes recorded were up from 485 to 1,884 during the same period.
The report tabled in Rajya Sabha on Wednesday said that juvenile crime ac counted for only 1.2% of a population of 472 million children in the country and that this percentage had remained constant over 2012 and 2013. The committee also noted that many of the juveniles were acquitted as they were not found guilty.
“The committee can only conclude that the existing juvenile system is not only reformative and rehabilitative but also recognizes the fact that 16-18 years is an extremely sensitive and critical age requiring greater protection. Hence, there is no need to subject them to different or adult judicial system as it will go against Articles 14 and 15(3) of the Constitution,’’ the report said.
Life in prison for teen's murder
In a rare case of juveniles being tried as adults, two minors were sentenced on Tuesday to life imprisonment for stabbing a class X student to death in December 2016.
This is the first life term to minors in Madhya Pradesh under the amended Juvenile Justice (Care and Protection of Children) Act. Judge AA Khan of a sessions court in Jhabua also fined the duo -aged 17 and 16 -Rs 10,000 each.“No doubt, this is the first judgment under amended Juvenile Justice Act. This may well be the first case in the country where minors were awarded life term,“ Jhabua SP Mahesh Chandra Jain said.
SC upholds life term for juvenile in school murder
The Supreme Court rejected the bail plea of a 16-year-old boy, accused of killing a seven-yearold student in a private school in Gurgaon last September, saying the alleged crime fell under the category of “heinous offence” and a life sentence could be given with possibility of remission.
Earlier, a sessions court had held the juvenile would be tried as an adult in the murder case under a new law.
Advocate Gaurav Agarwal, appearing for the accused in the SC, said the possibility of remission meant the alleged crime didn’t fall under the category of “heinous offence” but “serious offence”. But Justices R F Nariman and Indu Malhotra junked the argument.
SC on the “unfortunate gap” in the law
NEW DELHI: The Supreme Court held that a "gross mistake" had been committed by framers of the Juvenile Justice Act that allows a juvenile to evade being treated as an adult in grave offences such as homicide not amounting to murder, as these crimes do not carry a minimum sentence.
The court's observations came in the context of the JJ Act terming offences with minimum punishment of seven years imprisonment as "heinous", for prosecuting a minor above 16 years and less than 18, as an adult. In cases where there is no minimum sentence, a juvenile could not be treated as an adult till Parliament changed the law.
A bench of Justices Deepak Gupta and Aniruddha Bose passed the verdict while granting relief to a minor accused in the 2016 Mercedes hit-and-run case in the capital in which a person lost his life. The court held that the minor would not be treated as an adult because of an "unfortunate gap" in the law.
The bench directed that the order be sent to authorities concerned at the Centre to ensure that it was addressed by Parliament or issuance of an ordinance. It said the SC's directions shall remain in force till such action was taken.
Under the JJ Act, offences have been put into three categories - petty offences for which maximum punishment is imprisonment up to three years, serious offences involving a jail term of 3-7 years and heinous offences for which minimum punishment is seven years.
The court said there was a fourth category where no minimum sentence was prescribed but where the maximum sentence was more than seven years - like homicide not amounting to murder or abetment to suicide.
In case of a heinous offence committed by a minor above 16, the person could be tried as an adult after his mental and physical capacity to commit such a crime and ability to understand its consequences were established.
"We hold that an offence which does not provide a minimum sentence of seven years cannot be treated to be a heinous offence. However, in view of what we have held, the Act does not deal with the fourth category of offences - where the maximum sentence is more than seven years imprisonment but no minimum sentence or minimum sentence of less than seven years is provided," the bench said.
"How and in what manner a juvenile who commits such offences should be dealt with is something that the legislature should have clearly spelt out in the Act. There is an unfortunate gap. We cannot fill the gap by saying that these offences should be treated as heinous offences," the court added. Here again, a differentiation needs to be made as some offences will not fall in the heinous category.
"We also have to keep in mind the fact that the scheme of the Juvenile Justice Act is that children should be protected. Treating children as adults is an exception to the rule," the court said. In this case, the juvenile at the time of offence was above 16 years but below 18 years.
The Juvenile Justice Board in 2016 held that he had committed a heinous offence, and, therefore should be tried as an adult. The Delhi HC in May 2019 held that since no minimum sentence was prescribed for the offence in question, it did not fall within the ambit of the JJ Act and quashed the board's decision.