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The Juvenile Justice (Care and

Protection of Children) Act, 2015

Background:

Juvenile Justice (Care and Protection of

Children) Act, 2000 replaced the Juvenile Justice
Act, 1986 and it was extensively amended in 2006
and now it has been replaced by the above Act.
The Act of 2015 seeks to cater the basic needs of
the children alleged and found to be in conflict
with law and children in need of care and
protection through proper care, protection,
development, treatment, social re-integration by
adopting a child friendly approach in the
adjudication and disposal of matters in the best
interest of children and for their ultimate
rehabilitation.

Model Rules, 2016 have now been notified

with effect from 21.9.2016. The Act and the Rules
have to be read together. Though the provisions of
Cr. P.C. are applicable, the Act together with the
Rules, more or less, constitute a complete code for
dealing with cases of children in conflict with law.
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General Principles:

The Central Govt., State Govt., the Board, and

other agencies while implementing the provisions
of this Act shall be guided by the following
fundamental principles:-
1) Any child shall be presumed to be innocent
of any malafide or criminal intent upto the age of
18 years.

2) All human beings shall be treated with

equal dignity and rights.

3) Every child shall have a right to behave and

to participate in all process and decisions affecting
his interest.

4) All decisions regarding the child shall be

based on the interest of the child and to help the
child to develop full potential.

5) The primary responsibility of care, nurture

and protection of the child shall be that of the
biological family or adoptive or foster parents.

6) All measures shall be taken to ensure that

the child is safe and is not subjected to any harm,
abuse, etc.

7) All resources are to be mobilised including

those of the family and community, for promoting
the well-being, facilitating development of identity
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and providing proper environment to reduce

vulnerabilities.

8) Adversarial or accusatory words are not to

be used in the process pertaining to child.

9) No waiver of any right of the child is

permissible or valid.

10) There shall be no discrimination against a

child on the grounds of sex, caste, etc.

11) Every child shall have a right to protection

of his privacy and confidentiality.

12) A child shall be placed in institutional care

as a step of last resort.

13) Every child in the juvenile justice system

shall have the right to be united with his family at
the earliest.

14) All past records of any child should be

erased except in special circumstances.

15) Measures for dealing with children in

conflict with law without resorting to judicial
proceedings shall be promoted unless it is in the
best interest of the child or the society as a whole.
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16) Basic procedural standards of fairness

shall be adhered to, including the right to a fair
hearing.

Statistics relating to juvenile crime:-

1) Contrary to the popular belief and

projection by the media, the percentage of crimes
committed by the juveniles/children to the total
IPC crimes committed in the country remains
extremely low.

2) As per the report of National Crime Record

Bureau for the year 2013, the share of IPC crimes
committed by the juveniles during 2003 – 2005
remained at 1%.

3) This share was increased to 1.1% in 2006

and remained static in 2007.

4) This share increased marginally to 1.2% in

2008 and decreased to 1.1% in 2009.

5) This share was decreased to 1% in 2010

and increased to 1.1% in 2011.

6) This share was increased to 1.2 % in 2013.

7) 27936 IPC crimes by juvenile were

registered during 2012 which was increased to
31725 cases in 2013.
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Adjudicating machinery:-

Under the Act, the cases of children in conflict

with law are to be adjudicated by Juvenile Justice
Board constituted under Section 4 of the Act.

The Board shall consists of JCM with two

social workers of whom atleast one shall be a
woman, forming a bench. A child in conflict with
law may be produced before an individual member
of the Board, when the Board is not sitting.

A Board shall have the power to deal

exclusively with proceedings under the Act relating
to children in conflict with law and the powers
conferred on the Board may also be exercised by
the High Court and the children’s court when
proceedings come in appeal, revision, or otherwise.
The children in conflict with law are not to be
kept in jail or lock up. [Section 10(1)].

The Act provide for setting up of observation

homes, special homes and place of safety.

Observation Homes:- means a home established by

a State Govt. or by a voluntary organisation and
certified by the State Govt. under Section 47 of the
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Act. They are meant for temporary reception of any

child in conflict with law.

Special Homes:- means an institution established

by a State Govt. or by a voluntary organisation and
certified by that Govt. under Section 48 of the Act.

Place of Safety: mean any place or institution, the

person in charge of which is willing temporarily to
receive and take care of the child.

The Act of 2015 classifies the offences into

three types:-

1) Petty Offences - which includes the offences

for which the maximum punishment under IPC or
any other law for the time being in force is
imprisonment upto three years. [Section 2(45)]

2) Serious offences – which includes offences

for which the punishment under IPC or any other
law for the time being in force, is imprisonment
between 3 to 7 years. [Section 2(54)]

3) Henious offences – which include the

offences for which the minimum punishment
under the IPC or any other law for the time being
in force is imprisonment for 7 years or more.
[Section 2(33)]

“Child” means a person who has not

completed 18 years of age [Section 2(k)]
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“Child in conflict with law” means a child who

is alleged or found to have committed an offence
and who has not completed 18 years of age on the
date of commission of such offence.

As per Section 6 of the Act, any person who

has completed 18 years of age, and is apprehended
for committing an offence, when he was below the
age of 18 years, then, such person shall be treated
as a child during the process of enquiry. In case of
continuing offence, the relevant age would be the
last date of the offence.

Section 82 IPC:

Under this Section, nothing is an offence

which is done by a child under 7 years of age and
it confers absolute immunity in case of such a
child.

Section 83 IPC:

As per this section in the case of children in

the age group of 7 to 12 years, nothing done by
them would be an offence if they had not attained
sufficient maturity of understanding to judge the
nature and consequences of their conduct on that
occasion.

Thus, immunity is qualified one and it is for

the board to decide how the case of a child in the
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said age group is to be dealt with. A child under 12

years is presumed not to have reached the age of
discretion but, the presumption can be rebutted
by strong and cogent evidence of the child’s
understanding and judgment. [AIR 1977 SC 2236]

However, above the age of 12 years, there is no

immunity from criminal liability and the lack of
maturity of understanding the nature and
consequences of his conduct would not take away
the criminal liability though upto the age of 18
years, the child allegedly committing an offence
would be governed by the provisions of the Act.

The Act of 2015 is a special provision and

enacted after the IPC and as such the provisions of
the Act would prevail, in case of any inconsistency
between IPC and the Act.

When during the course of enquiry under the

Act, the child completes the age of 18 years, then,
the enquiry may be continued by the Board and
orders may be passed as if such person had
continued to be a child [Section 5].

Age enquiry:

Immediately, on apprehension, the Police

Officers are required to make enquiries about the
age of the person apprehended and steps taken in
this regard have to be mentioned in the final
report.
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As per Section 9(1) of the Act, the Magistrate

on forming an opinion that the person brought
before him is a child, has to record the opinion
and forward the child immediately to the Board.

As per Section 9(2), every court before which

the question of juvenility is raised, whatever be the
stage and even after disposal of the case, is to
make an enquiry and take such evidence as may
be necessary to decide the age.

Section 94 of the Act lays down a definite

ordering of documents to be considered or
determining the age namely:

i) the date of birth certificate from the school,

or matriculation or equivalent certificate from the
concerned Examination Board, if available and in
the absence thereof,

ii) the birth certificate given by a Corporation

or Municipal authority or a Panchayath.

iii) only in the absence of (i) and (ii), the age

shall be determined by an ossification test or any
other latest medical age determination conducted
on orders of the board.

It was held by the Supreme Court in Ashwani

Kumar Saxsena vs State of M.P. [2012(9) SCC
750] obliges the court only to make an enquiry,
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not an investigation or trial, an enquiry not under

the Cr. P.C., but under the JJ Act. Further, it was
observed that the Court or the Board can accept as
evidence something more than an affidavit, i.e.
documents, certificates, etc. as evidence need not
be oral evidence.

The court is bound to hold an age

determination enquiry in all cases in which
accused claims to be a child and claim cannot be
rejected on the ground of being an afterthought.

The claim of juvenility may be raised even after

the final disposal of the case. The court has to
conduct enquiry and if satisfied court can remand
the matter to the trial court to decide the claim of
juvenility. [2013(4) SCC 186].

Pre-production process:

Section 10 of the Act provides that as soon as

a child alleged to be in conflict with law is
apprehended, he shall be placed in the custody of
a special juvenile police unit or the designated
child welfare police officer.

1) The parents or the guardian or the child are

to be informed immediately about the
apprehension of the child [Section 13(1)(i)]

2) The child in no case to be kept in lock up or

jail.
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3) Rule 8(3)(i) of the Model Rules of 2016

provides that the police officer may send the
person apprehended to an observation home only
for such period till he is produced before the
Board.

4) The child is not to be handcuffed, chained

or fettered.

5) The child is to be informed promptly for the

charges levelled against him through his parents
or guardian and shall provide all appropriate
assistance.

6) The child is to be provided with medical

assistance, assistance of interpreter, if required.

7) The child should not be compelled to

confess his guilt.

8) The Police Officer has to inform District

Legal Service Authority for providing three legal
heirs to the child.

9) The guidelines laid down in D.K. Basu vs.

State of West Bengal [1997(1) SCC 416] are to be
complied with.

10) No FIR is to be registered except where a

heinous offence if alleged have been committed by
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the child or when such offence is alleged to have

been committed jointly with others.

11) The child is to be apprehended only in case

of nenious offences.

12) In Sheela Barse v. Union of India [AIR

1986 SC 1773] a direction was issued by the
Supreme Court that investigation in all cases
related to juvenile, where punishment prescribed
for adults is less than 7 years, should be
completed within three months and the final
report forwarded to the Board.

13) Even in cases of heinous offences, final

report is to be filed at the earliest.

Bail:-

Section 12 provides for reliefs on bail of a

person accused of bailable or non-bailable offence.
Bail can be granted with or without surety.

Bail can be refused on the grounds that the

release is –

(i) likely to bring him into association with any

known criminal.

ii) Expose him to moral, physical or

psychological danger, or
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iii) that his release would defeat the ends of

justice.

The child is to be kept in the institution only if

it is in his interest and not as a mark of
punishment because it is felt that he may repeat
the act.

The offence alleged against the child or the

gravity thereof or the role of the child or even the
interest of the victim is not the consideration.

The Board called for social investigation report

from the probation Officer and also report of
physical and mental assessment.

Post-production process:-

The Board may,

(i) dispose of the case, if the Board is satisfied

on enquiry that the child has not committed any
offence.

(ii) Transfer the child to the Welfare Committee

if it appears to the board that the child has not
committed the offence and is in need of care and
protection.

(iii) consider the release of the child on bail.

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(iv) Release the child in the supervision or

custody of fit persons or probation officers.

(v) If the child in an observation form or place

of safety pending enquiry.

The Board has also to satisfy itelf that the

child in conflict with law has not been subjected to
any ill-treatment by the Police or by any other
person. [Sec. 14(5)(a)]

Nature and scope of enquiry before the Board

1. The proceedings before the Board are to be

conducted in a simple manner and the child is to
be given a child friendly atmosphere.

2. The child has to be given the opportunity to

be heard.

3. The Board may require any parent or

guardian to be present any proceeding in respect
of the child.

4. The Board conducts an enquiry and not a

trial.

5. The case of petty offences are to be

disposed off through summary proceeding as per
Cr. P.C.
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6. The procedure of summons trial is to be

followed during enquiry of serious and heinous
offences where the child was below the age of 16
years on the date of commission of the offence or
where in case of children in the age group of 16 to
18 years, the Board decides to dispose of the
matter itself.

7. No child can be charged with or trial for

any offences together with a person who is not a
child.

8. Only the material witnesses are examined.

It is not a full-fledged trial.

9. Enquiry has to be completed within four

months from the date of production of the child
before the Board.

10. If an enquiry for petty offences remains in

conclusive even after the extended period, the
proceedings hall stand terminated. However, in
case of heinous or serious offences, further
extension may be granted by the Chief Judicial
Magistrate.

11. The Board may use the power conferred

by Section 165 of the Evidence Act.

12) The right to privacy and confidentiality of

the child is to be protected at all times.
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Under the Act 2015, the Board in case of

heinous offense alleged to have been committed by
a child, who has completed or is above the age of
16 years, has to conduct a preliminary
assessment. The said preliminary assessment is to
be done with regard to

i) the mental and physical capacity of the child

to commit such offence,

ii) ability of the child to understand the

consequences of the offence, and

iii) the circumstances in which the child

allegedly committed the offence.

The Board for conducting such an assessment,

may take the assistance of experienced
psychologist or psycho-social workers or other
experts.

The preliminary assessment has to be

disposed of by the Board within three months from
the date of 1st production of the child before the
Board.

The Board may, after the preliminary

assessment, decide to dispose of the matter itself.
Where the Board passes an order that there is a
need for trial of the child as an adult, then the
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Board may transfer the trial of the case to the

Children’s Court.

After the Children’s Court receives the

preliminary assessment, it has to make a decision
on whether to try the child as an adult or as a
child.

If the Children’s Court decides that there is no

need for trial of the child as an adult, it may
conduct an enquiry as a Board and pass orders as
per Section 18. In such a situation, only an
enquiry and not a trial is contemplated.

Where the Children’s Court decides that there

is need for trial of the child as an adult as per the
provisions of Cr. P.C., it may pass appropriate
orders.

Dispositional Orders and Rehabilitation:

After the conclusion of enquiry, if the Board

for Children’s Court is satisfied that the child is
involved in the alleged offence, it may pass one of
the following orders under Section 18:-

(a) allow the child to go home after advice or

admonition.

(b) direct the child to participate in Group

Counselling and similar activities.
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(c) order the child to perform community

service under the supervision of an organisation or
institution.

(d) order the parents or the child or the

guardian to pay a fine.

(e) direct the child to be released on probation

of good conduct and placed under the care of any
parent, guardian or other fit person.

(f) direct the child to be sent to a special home

for a period not exceeding three years.

Before passing an order, the Board shall

obtain a social investigation report prepared by
Probation Officer and take the findings of the
report in the account.

No child in conflict with law can be sentenced

to death or imprisonment for life without the
possibility of release.[Section 21]

Where the children’s thought comes to a

finding that the child was involved in the offence,
and the child is sent to a place of safety, once the
child attains the age of 21 years and is yet to
complete the term of stay, the Children’s Court is
to review the case of the child to evaluate if the
child has undergone reformative changes and can
be a contributing member to the society.
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Appeal:

Any person aggrieved by an order of the

committee or the court under this Act, may within
30 days from the date of such order, prefer an
appeal to the children’s court.

An appeal shall lie against the order of the

Board passed after making preliminary
assessment, before the court of session.

No appeal shall lie from -

(a) any order of acquittal made by the Board in

respect of a child alleged to have committed an
offence other than heinous offence.

(b) any order made by a committee in respect

of finding that a person is not a child in need of
care and protection.

No second appeal shall lie from any order of

the Court of Session passed in appeal.

Any person aggrieved by an order of the

Children’s Court may file an appeal before the
High Court in accordance with the provisions in
the Cr. P.C. [Section 101]
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As per Section 102, the Hon’ble High Court

has the power of revision.

Pending case:

As per Section 25, all proceedings in respect of

a child alleged or found to be in conflict with law
pending before any Board or Court on the date of
commencement of the Act shall be continued in
that Board or Court.

Removal of disqualification attached to conviction:

A child who has committed an offence and has

been dealt with under the provisions of this Act
shall not suffer disqualification, if any, attaching
to a conviction of an offence under such law
[Section 24(1)].

However, if the child has completed the age of

16 years and if found to be in conflict with law by
the Children’s Court under Section 19(1)(i), the
said provisions would not apply.

Role of legal service lawyers:

The legal service lawyers have a vital role to

play in the juvenile justice system. They have to
build trust so that children and their families are
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forthcoming with the truth, besides explaining to

the children and their families that the objective of
the Act is not to punish the children but to
rehabilitate them and to ensure their re-
integration in the society.

The legal service lawyers can act as friends,

philosophers and guides to the guides of the
children in conflict with law. There may be
instances where an appeal or a revision to be filed
against the Board and the same comes to the legal
services lawyers and in such cases, they would be
required to act as per the mandate of Act 2015.

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