CHANAKYA NATIONAL LAW UNIVERSITY

PATNA

Submission of Moot Final Project

TOPIC: Under Juvenile Justice (Care and Protection of Children) Act, 2015
and Rule 2016- Procedure in relation to Children in conflicts with law

Submitted To: Dr. Anshuman

Submitted By: Aayushi Chaudhary
Roll No.: 902

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 ACKNOWLEDGEMENT

Apart from the efforts, the success of any project depends largely on the
encouragement and guidelines of many others. I take this opportunity to express my
gratitude to the people who have been instrumental in the successful completion of
this project.
I would like to show my greatest appreciation Dr Anshuman. I can't say thank you
enough for his tremendous support and help. I feel motivated and encouraged every
time I attend his meeting. Without his encouragement and guidance this project
would not have been materialized.
I would also like to thank my friends who gave me valuable advices in order to
complete my project successfully.
The guidance and support received from all the members who contributed and who
are contributing to this project, was vital for the success of the project. I am grateful
for their constant support and help.

AAYUSHI CHAUDHARY
ROLL NO- 902

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 Contents
1. ACKNOWLEDGEMENT .................................................................................................. 2
2. INTRODUCTION .............................................................................................................. 4
3. Research Methodology ....................................................................................................... 7
4. ISSUES AND CHALLENGES .......................................................................................... 8
5. The Juvenile Justice Act, 2015 ......................................................................................... 11
6. Juvenile Justice(Care and Protection of Children) Rules, 2016 ....................................... 19
7. Conclusion: Views and Suggestions ................................................................................. 33
8. BIBLIOGRAPHY ............................................................................................................. 36

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 Chapter-1

INTRODUCTION

Juvenile is derived from Latin word juvenis meaning a young person. The Black’s Law Dictionary
defines juvenile delinquency as wrong doing of a young or youth.1

The Common Law Doctrine: Doli in capax vis-à-vis Malitia Supplet Aetatem
The Original Goal of a Common Law Juvenile Court was that, “a child brought into court, should,
of course, be made to know that he is face to face with the power of the state, but he should at the
same time, and more emphatically, be made to feel that he is the object of its care and solicitude.
The ordinary trappings of the courtroom are out of place in such hearings. The judge on a bench,
looking down upon the boy standing at the bar, can never evoke a proper sympathetic spirit. Seated
at a desk, with the child at his side, where he can on occasion put his arm around his shoulder and
draw the lad to him, the judge, while losing none of his judicial dignity, will gain immensely in the
effectiveness of his work.” 2

Blackstone, one of the most important English lawyer, differentiated between Infants and Adult,
the common law maxim Actus reus non facit reum nisi mens sit rea demands two ingredients of
crime, firstly the “vicious will” and secondly the commission of an unlawful act3. The former
ingredients call for immunity to those who are incapable of possessing the intention to commit
crime by virtue of their age. The children below the age of seven years were grouped as infants
and could not be held guilty of a serious crime or a felony such as burglary and murder. Children
over the age of fourteen years were treated as adult, but with regard to those who were in the age
group of 7-14, there was a strong presumption as to incapability to commit crime but at the same
time the maxim of, “malitia supplet aetatem” was also applicable in Blackstone’s time as
described by him in his commentaries. Blackstone explained that, “the capacity of doing ill, or
contracting guilt, is not so much measured by years and days, as by the strength of the delinquent’s

1
Bryan A. Garner, Black’s Law Dictionary, 8th edition, [USA: Thomson, 2004]
2
Julian Mack, The Juvenile Court, Harvard Law Review, vol. 23, 1909, p.120
3
Dr. Hari Singh Gour’s The Indian Penal Code, [Allahabad: Law Publishers (India) Pvt. Ltd., 2005] at p. 45.

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understanding and judgment. For one lad of eleven years old may have as much cunning as
another of fourteen; and in these cases our maxim is, that malitia supplet aetatem i.e. “malice
supplies the age””4

The same concept was incorporated in Indian Penal Code, 1860 by Lord Macaulay5, Section 82 of
the code provides that “Nothing is an offence which is committed by a child above seven years of
age”6, however with regard to children between the age of seven and twelve there is only strong
presumption as to the incapability to commit crime7, however once the court has determined that
once a child has not attained the maturity to commit the crime then the immunity conferred by
Section 83 is also absolute.8

The Children’s Act, 1960 (Repealed)

In the early years of independent India, the Indian judiciary faced severe problems in the execution
of law pertaining to children. This was due to a crippling lack of child-care infrastructure, lack of
a separate judicial process for children and also due to multiple laws governing children that
differed across States and religions9. The act was the first attempt by the union government to
come up with a universal law for children, though it was applicable only in Union territories10.
This act aimed to provide for the care, protection, maintenance, welfare, training, education and
rehabilitation of neglected or delinquent children and for the trial of delinquent children in the
Union territories11. The act defined child as any boy who was below the age of 16 and any girl
below the age of 18 years.12 The act also provides for establishment of separate children court13
and child welfare board14.

Juvenile Justice Act, 1986 (Repealed)

4
William Blackstone’s Commentaries on the Laws of England, Book IV, Chapter 2 (“Of the Persons Capable of
Committing Crimes”) A New System of Justice for Juveniles.
5
See,, Indian Penal Code, 1860
6
Ibid, Section 82
7
Ibid, Section 83
8
K I Vibhuti, PSA Pillai’s Criminal Law, 11th Edition, [Nagpur: Lexis Nexis Buttersworth Wadhwa, 2012] p. 91
9
Representing Children World Wide, available at
http://www.law.yale.edu/rcw/rcw/jurisdictions/assc/india/frontpage.htm (Last accessed on 14th December, 2015)
10
Section 1(2), Children’s Act, 1960
11
See, Children’s Act, 1960
12
Ibid, Section 2(e)
13
Ibid, Section 5
14
Ibid, Section 4

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There was a need for a universal juvenile law in order to comply with the Beijing Rules15, in order
to do so the government of India came up with the Juvenile Justice Act, 1986. This act extended
all over India except in the state of Jammu & Kashmir16.

Juvenile Justice (Care and Protection) Act, 2000

This act was enacted subsequent to ratification of UN Convention on Child Rights on November
12, 1992. The entire juvenile justice system is now governed by the Juvenile Justice (Care and
Protection) Act 2000, the act repealed the preceding Juvenile Justice Act of 1986. The Juvenile
Justice Act, 2000, doesn’t provide absolute immunity to the delinquent as provided in Section 82
and 83 of the Indian Penal Code, 1860. However the act prohibits death sentence or life
imprisonment, or imprisonment in default of payment of fine or in default of furnishing security.17
The act also provides that all the powers of court in relation to juvenile in conflict with law shall
be dealt by Juvenile Justice Board established by state government. 18 The act provides that the
juvenile in conflict with law shall be placed under the charge of Special Juvenile Police Unit.19

The Juvenile Justice Amendment Act, 2006

The Juvenile Justice Amendment Act, 2006, added section 7A, to the act which enabled the plea
of juvenility to be raised at any court, here any court includes Supreme Court.20 The Amendment
also added the definition of adoption.21

The Juvenile Justice Amendment Act, 2011

The Juvenile Justice Amendment Act, 2011 introduced provisions for mentally ill and drug/alcohol
addicted children. In case the child is mentally ill or addicted to drugs, he/she shall be sent to
psychiatry care or Integrated Rehabilitation Centre for Addict.22

15
UN Standard Minimum Rules for Administration of Juvenile Justice, 1985
16
Juvenile Justice (Care and Protection), Act, 2000, Section 1(2)
17
Indian Penal Code, 1860, Section 16
18
Juvenile Justice (Care and Protection), Act, 2000, Section 4(a),
19
Ibid, Section 10
20
Ashwani Kumar Saxena vs. State of MP, (2012) 9 SCC 750
21
See Supra Note 16, Section 2(aa)
22
Supra Note 17, Section 58

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 Research Methodology

Aims and Objectives

 To know the procedure in relation to the children in conflict with law under Juvenile
Justice Act, 2015.
 To know the procedure in relation to the children in conflict with law under Juvenile
Justice Rules, 2016.

Research Methodology
Doctrinal research method – The researcher has primarily focused on the “Doctrinal Method”. The
research is based on comprehensive study of sources which are primarily books, articles and
internet sources.

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 Chapter-2

ISSUES AND CHALLENGES

Determination of Age and Plea of Juvenility

The proof age is a matter of fact, and material evidence as enshrined under Rule 12 of the Juvenile
Justice Rules, 2007 is to be produced before the court and it is the duty of the trial court to
determine the age of the accused23.

Though Section 7A of the Juvenile Justice Act, 200 enables the plea of juvenility to be raised at
any point the Supreme Court observed that it is duty of the trial court to determine the age of the
accused at the outset in the case of Ashwani Kumar Saxena vs. State of MP24, the court further
observed the following observations with regard to scope of section 7A:

“Section 7A, obliges the court only to make an inquiry, not an investigation or a trial,
an inquiry not under the Code of Criminal Procedure, but under the J.J. Act. Criminal Courts, JJ
Board, Committees etc., we have noticed, proceed as if they are conducting a trial, inquiry, enquiry
or investigation as per the Code. Statute requires the Court or the Board only to make an ‘inquiry’
and in what manner that inquiry has to be conducted is provided in JJ Rules. Few of the
expressions used in Section 7A and Rule 12 are of considerable importance and a reference to
them is necessary to understand the true scope and content of those provisions. Section 7A has
used the expression “court shall make an inquiry”, “take such evidence as may be necessary” and
“but not an affidavit”. The Court or the Board can accept as evidence something more than an
affidavit i.e. the Court or the Board can accept documents, certificates etc. as evidence need not
be oral evidence. Rule 12 which has to be read along with Section 7A has also used certain
expressions which are also be borne in mind. Rule 12(2) uses the expression “prima facie” and
“on the basis of physical appearance” or “documents, if available”. Rule 12(3) uses the
expression “by seeking evidence by obtaining”. These expressions in our view re-emphasize the
fact that what is contemplated in Section 7A and Rule 12 is only an inquiry. Further,
the age determination inquiry has to be completed and age be determined within thirty days

23
Rajinder Chandra vs. State of Chhattisgarh. AIR 2002 SC 748
24
(2012) 9 SCC 750

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from the date of making the application; which is also an indication of the manner in which the
inquiry has to be conducted and completed. The word ‘inquiry’ has not been defined under the J.J.
Act, but Section 2(y) of the J.J. Act says that all words and expressions used and not defined in the
J.J. Act but defined in the Code of Criminal Procedure, 1973 (2 of 1974), shall have the meanings
respectively assigned to them in that Code”.25

In Shah Nawaz v. State of Uttar Pradesh and another,26 An F.I.R. was lodged against the
appellant, Shah Nawaz, and three others for the offences punishable under Sections 302 and 307
of IPC. The mother of the appellant submitted an application before the Board stating that Shah
Nawaz was minor at the time of alleged occurrence. The Board after holding an enquiry declared
Shah Nawaz a juvenile under the 2000 Act. The wife of the deceased filed criminal appeal against
the judgment of the Board before the Additional Sessions Judge, Muzaffarnagar. That appeal was
allowed and the order of the Board was set aside. Shah Nawaz preferred criminal revision before
the High Court against the order of the Additional Sessions Judge which was dismissed giving rise
to appeal by special leave before this Court. Supreme Court considered Rule 12 of 2007 Rules and
on consideration of the documents, particularly entry relating to the date of birth entered in the
marksheet held that Shah Nawaz was juvenile on the date of occurrence of the incident.

Reckoning Date for determination of the age.

In Pratap Singh Vs. State of Jharkhand,27 the constitution bench of the supreme court held that
reckoning date for determination of age will be the date of commission of crime not the date of
institution of case.

Inter Country Adoption

The law with regard to inter-country adoption, indeed, was in a state of flux until the principles
governing giving of Indian children in adoption to foreign parents and the procedure that should
be followed in this regard to ensure absence of any abuse, maltreatment or trafficking of children
came to be laid down by this Court in Lakshmi Kant Pandey v. Union of India28. There was
recent controversy with regard to judgment of Jan Balaz v. Anand Municipality29, a German

25
Ibid, See ¶ 27 of the Judgement
26
(2011) 13 SCC 751
27
(2005) 3 SCC 551.
28
1984 SCR (2) 795
29
AIR 2010 Guj 21

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couple entered into a contract with a surrogate mother named Marthaben Immanuel Khrishti. Twin
children were born. The German couple was working in the United Kingdom and the children
required Indian passports to travel. Since their citizenship was being litigated in the courts the
passport authorities withheld the passports. Germany, the parent state of the German couple did
not recognize surrogacy. The Supreme Court denied the passports but granted an exit permit to
the children and the German authorities decided to give the couple an opportunity to adopt the
children and fight for their rights30 the matter is still under consideration in the Supreme Court. In
furtherance of the issues and problems discussed, the researcher welcomes the provision of inter-
country adoption in the new act.

Lack of Awareness and poor implementation of Act

The major challenge is lack of awareness and non-availability of documentary proof to establish
the age. The Jharkahnd State Comission for protection of Child Rights, reported that more than
100 juvenile offenders have been languishing in three different jails of Jharkhand because there is
either not enough proof of their ages or the police have not documented investigations properly.31
The above figures are a matter of great concern and is derogatory and demeaning to the aim and
objective of the Juvenile Justice.

30
Union Of India & Anr. Vs. Jan Balaz & Ors, Civil Appeal No(s). 8714/2010
31
Jharkhand: More than 100 juveniles in jails, 6 feb, 2014, The Hindu, available at
http://www.hindustantimes.com/india-news/more-than-100-juveniles-languishing-in-jharkhand-jails-survey/article1-
1181315.aspx

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 Chapter-3

The Juvenile Justice Act, 2015

CHAPTER IV of the Act deals with PROCEDURE IN RELATION TO CHILDREN IN

CONFLICT WITH LAW.

Section 10. (1) As soon as a child alleged to be in conflict with law is apprehended by the police,
such child shall be placed under the charge of the special juvenile police unit or the designated
child welfare police officer, who shall produce the child before the Board without any loss of time
but within a period of twenty-four hours of apprehending the child excluding the time necessary
for the journey, from the place where such child was apprehended: Provided that in no case, a child
alleged to be in conflict with law shall be placed in a police lockup or lodged in a jail. (2) The State
Government shall make rules consistent with this Act,— (i) to provide for persons through whom
(including registered voluntary or nongovernmental organisations) any child alleged to be in
conflict with law may be produced before the Board; (ii) to provide for the manner in which the
child alleged to be in conflict with law may be sent to an observation home or place of safety, as
the case may be.

Section 11. Any person in whose charge a child in conflict with law is placed, shall while the order
is in force, have responsibility of the said child, as if the said person was the child’s parent and
responsible for the child’s maintenance: Provided that the child shall continue in such person’s
charge for the period stated by the Board, notwithstanding that the said child is claimed by the
parents or any other person except when the Board is of the opinion that the parent or any other
person are fit to exercise charge over such child.

Section 12. (1) When any person, who is apparently a child and is alleged to have committed a
bailable or non-bailable offence, is apprehended or detained by the police or appears or brought
before a Board, such person shall, notwithstanding anything contained in the Code of Criminal
Procedure, 1973 or in any other law for the time being in force, be released on bail with or without
surety or placed under the supervision of a probation officer or under the care of any fit person:
Provided that such person shall not be so released if there appears reasonable grounds for believing

11
that the release is likely to bring that person into association with any known criminal or expose
the said person to moral, physical or psychological danger or the person’s release would defeat the
ends of justice, and the Board shall record the reasons for denying the bail and circumstances that
led to such a decision. (2) When such person having been apprehended is not released on bail under
subsection (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
brought before a Board. (3) When such person is not released on bail under sub-section (1) by the
Board, it shall make an order sending him to an observation home or a place of safety, as the case
may be, for such period during the pendency of the inquiry regarding the person, as may be
specified in the order. (4) When a child in conflict with law is unable to fulfil the conditions of bail
order within seven days of the bail order, such child shall be produced before the Board for
modification of the conditions of bail.

Section 13. (1) Where a child alleged to be in conflict with law is apprehended, the officer
designated as Child Welfare Police Officer of the police station, or the special juvenile police unit
to which such child is brought, shall, as soon as possible after apprehending the child, inform —
(i) the parent or guardian of such child, if they can be found, and direct them to be present at the
Board before which the child is produced; and (ii) the probation officer, or if no probation officer
is available, a Child Welfare Officer, for preparation and submission within two weeks to the
Board, a social investigation report containing information regarding the antecedents and family
background of the child and other material circumstances likely to be of assistance to the Board
for making the inquiry. (2) Where a child is released on bail, the probation officer or the Child
Welfare Officer shall be informed by the Board.

Section 14. (1) Where a child alleged to be in conflict with law is produced before Board, the
Board shall hold an inquiry in accordance with the provisions of this Act and may pass such orders
in relation to such child as it deems fit under sections 17 and 18 of this Act. (2) The inquiry under
this section shall be completed within a period of four months from the date of first production of
the child before the Board, unless the period is extended, for a maximum period of two more
months by the Board, having regard to the circumstances of the case and after recording the reasons
in writing for such extension. (3) A preliminary assessment in case of heinous offences under
section 15 shall be disposed of by the Board within a period of three months from the date of first

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production of the child before the Board. (4) If inquiry by the Board under sub-section (2) for petty
offences remains inconclusive even after the extended period, the proceedings shall stand
terminated: Provided that for serious or heinous offences, in case the Board requires further
extension of time for completion of inquiry, the same shall be granted by the Chief Judicial
Magistrate or, as the case may be, the Chief Metropolitan Magistrate, for reasons to be recorded
in writing. (5) The Board shall take the following steps to ensure fair and speedy inquiry,
namely:— (a) at the time of initiating the inquiry, the Board shall satisfy itself that the child in
conflict with law has not been subjected to any ill-treatment by the police or by any other person,
including a lawyer or probation officer and take corrective steps in case of such ill-treatment; (b)
in all cases under the Act, the proceedings shall be conducted in simple manner as possible and
care shall be taken to ensure that the child, against whom the proceedings have been instituted, is
given child-friendly atmosphere during the proceedings; (c) every child brought before the Board
shall be given the opportunity of being heard and participate in the inquiry; (d) cases of petty
offences, shall be disposed of by the Board through summary proceedings, as per the procedure
prescribed under the Code of Criminal Procedure, 1973; (e) inquiry of serious offences shall be
disposed of by the Board, by following the procedure, for trial in summons cases under the Code
of Criminal Procedure, 1973; (f) inquiry of heinous offences,— (i) for child below the age of
sixteen years as on the date of commission of an offence shall be disposed of by the Board under
clause (e); (ii) for child above the age of sixteen years as on the date of commission of an offence
shall be dealt with in the manner prescribed under section 15.

Section 15. (1) In case of a heinous offence alleged to have been committed by a child, who has
completed or is above the age of sixteen years, the Board shall conduct a preliminary assessment
with regard to his mental and physical capacity to commit such offence, ability to understand the
consequences of the offence and the circumustances in which he allegedly committed the offence,
and may pass an order in accordance with the provisions of subsection (3) of section 18: Provided
that for such an assessment, the Board may take the assistance of experienced psychologists or
psycho-social workers or other experts. Explanation.—For the purposes of this section, it is
clarified that preliminary assessment is not a trial, but is to assess the capacity of such child to
commit and understand the consequences of the alleged offence. (2) Where the Board is satisfied
on preliminary assessment that the matter should be disposed of by the Board, then the Board shall
follow the procedure, as far as may be, for trial in summons case under the Code of Criminal

13
Procedure, 1973: Provided that the order of the Board to dispose of the matter shall be applealable
under sub-section (2) of section 101: Provided further that the assessment under this section shall
be completed within the period specified in section 14.

Section 16. (1) The Chief Judicial Magistrate or the Chief Metropolitan Magistrate shall review
the pendency of cases of the Board once in every three months, and shall direct the Board to
increase the frequency of its sittings or may recommend the constitution of additional Boards. (2)
The number of cases pending before the Board, duration of such pendency, nature of pendency
and reasons thereof shall be reviewed in every six months by a high level committee consisting of
the Executive Chairperson of the State Legal Services Authority, who shall be the Chairperson,
the Home Secretary, the Secretary responsible for the implementation of this Act in the State and
a representative from a voluntary or nongovernmental organisation to be nominated by the
Chairperson.(3) The information of such pendency shall also be furnished by the Board to the
Chief Judicial Magistrate or the Chief Metropolitan Magistrate and the District Magistrate on
quarterly basis in such form as may be prescribed by the State Government.

Section 17. (1) Where a Board is satisfied on inquiry that the child brought before it has not
committed any offence, then notwithstanding anything contrary contained in any other law for the
time being in force, the Board shall pass order to that effect. (2) In case it appears to the Board that
the child referred to in sub-section (1) is in need of care and protection, it may refer the child to
the Committee with appropriate directions.

Section 18. (1) Where a Board is satisfied on inquiry that a child irrespective of age has committed
a petty offence, or a serious offence, or a child below the age of sixteen years has committed a
heinous offence, then, notwithstanding anything contrary contained in any other law for the time
being in force, and based on the nature of offence, specific need for supervision or intervention,
circumstances as brought out in the social investigation report and past conduct of the child, the
Board may, if it so thinks fit,— (a) allow the child to go home after advice or admonition by
following appropriate inquiry and counselling to such child and to his parents or the guardian; (b)
direct the child to participate in group counselling and similar activities; (c) order the child to
perform community service under the supervision of an organisation or institution, or a specified
person, persons or group of persons identified by the Board; (d) order the child or parents or the

14
guardian of the child to pay fine: Provided that, in case the child is working, it may be ensured that
the provisions of any labour law for the time being in force are not violated; (e) direct the child to
be released on probation of good conduct and placed under the care of any parent, guardian or fit
person, on such parent, guardian or fit person executing a bond, with or without surety, as the
Board may require, for the good behaviour and child’s well-being for any period not exceeding
three years; (f) direct the child to be released on probation of good conduct and placed under the
care and supervision of any fit facility for ensuring the good behaviour and child’s well-being for
any period not exceeding three years; (g) direct the child to be sent to a special home, for such
period, not exceeding three years, as it thinks fit, for providing reformative services including
education, skill development, counselling, behaviour modification therapy, and psychiatric
support during the period of stay in the special home: Provided that if the conduct and behaviour
of the child has been such that, it would not be in the child’s interest, or in the interest of other
children housed in a special home, the Board may send such child to the place of safety. (2) If an
order is passed under clauses (a) to (g) of sub-section (1), the Board may, in addition pass orders
to— (i) attend school; or (ii) attend a vocational training centre; or (iii) attend a therapeutic centre;
or (iv) prohibit the child from visiting, frequenting or appearing at a specified place; or (v) undergo
a de-addiction programme. (3) Where the Board after preliminary assessment under section 15
pass an order that there is a need for trial of the said child as an adult, then the Board may order
transfer of the trial of the case to the Children’s Court having jurisdiction to try such offences.

Section 19. (1) After the receipt of preliminary assessment from the Board under section 15, the
Children´s Court may decide that— (i) there is a need for trial of the child as an adult as per the
provisions of the Code of Criminal Procedure, 1973 and pass appropriate orders after trial subject
to the provisions of this section and section 21, considering the special needs of the child, the tenets
of fair trial and maintaining a child friendly atmosphere; (ii) there is no need for trial of the child
as an adult and may conduct an inquiry as a Board and pass appropriate orders in accordance with
the provisions of section 18. (2) The Children’s Court shall ensure that the final order, with regard
to a child in conflict with law, shall include an individual care plan for the rehabilitation of child,
including follow up by the probation officer or the District Child Protection Unit or a social worker.
(3) The Children’s Court shall ensure that the child who is found to be in conflict with law is sent
to a place of safety till he attains the age of twenty-one years and thereafter, the person shall be
transferred to a jail: Provided that the reformative services including educational services, skill

15
development, alternative therapy such as counselling, behaviour modification therapy, and
psychiatric support shall be provided to the child during the period of his stay in the place of safety.
(4) The Children’s Court shall ensure that there is a periodic follow up report every year by the
probation officer or the District Child Protection Unit or a social worker, as required, to evaluate
the progress of the child in the place of safety and to ensure that there is no ill-treatment to the
child in any form. (5) The reports under sub-section (4) shall be forwarded to the Children´s Court
for record and follow up, as may be required.

Section 20. (1) When the child in conflict with the law attains the age of twenty-one years and is
yet to complete the term of stay, the Children´s Court shall provide for a follow up by the probation
officer or the District Child Protection Unit or a social worker or by itself, as required, to evaluate
if such child has undergone reformative changes and if the child can be a contributing member of
the society and for this purpose the progress records of the child under sub-section (4) of section
19, along with evaluation of relevant experts are to be taken into consideration. (2) After the
completion of the procedure specified under sub-section (1), the Children’s Court may— (i) decide
to release the child on such conditions as it deems fit which includes appointment of a monitoring
authority for the remainder of the prescribed term of stay; (ii) decide that the child shall complete
the remainder of his term in a jail: Provided that each State Government shall maintain a list of
monitoring authorities and monitoring procedures as may be prescribed.

Section 21. No child in conflict with law shall be sentenced to death or for life imprisonment
without the possibility of release, for any such offence, either under the provisions of this Act or
under the provisions of the Indian Penal Code or any other law for the time being in force.

Section 22. Notwithstanding anything to the contrary contained in the Code of Criminal Procedure,
1973, or any preventive detention law for the time being in force, no proceeding shall be instituted
and no order shall be passed against any child under Chapter VIII of the said Code.

Section 23. (1) Notwithstanding anything contained in section 223 of the Code of Criminal
Procedure, 1973 or in any other law for the time being in force, there shall be no joint proceedings
of a child alleged to be in conflict with law, with a person who is not a child. (2) If during the
inquiry by the Board or by the Children’s Court, the person alleged to be in conflict with law is
found that he is not a child, such person shall not be tried along with a child.

16
Child attained age of twenty-one years and yet to complete prescribed term of stay in place of
safety.

Section 24. (1) Notwithstanding anything contained in any other law for the time being in force, a
child who has committed an offence and has been dealt with under the provisions of this Act shall
not suffer disqualification, if any, attached to a conviction of an offence under such law: Provided
that in case of a child who has completed or is above the age of sixteen years and is found to be in
conflict with law by the Children’s Court under clause (i) of sub-section (1) of section 19, the
provisions of sub-section (1) shall not apply. (2) The Board shall make an order directing the
Police, or by the Children’s court to its own registry that the relevant records of such conviction
shall be destroyed after the expiry of the period of appeal or, as the case may be, a reasonable
period as may be prescribed: Provided that in case of a heinous offence where the child is found
to be in conflict with law under clause (i) of sub-section (1) of section 19, the relevant records of
conviction of such child shall be retained by the Children’s Court.

Section 25. Notwithstanding anything contained in this Act, 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 this Act, shall be continued in that Board or court as if this Act had not been
enacted.

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 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

17
the best interest of the child. (4) No additional proceeding shall be instituted in respect of such
child.

16-18 Year Age Group-The Grey Area (Trial of Heinous Offence):

If the heinous offence is committed by a child below the age of 16 years then that shall be dealt
as if it is a serious offence, but in case it is committed by the a child of the age 16-18 years then
the Board shall conduct a preliminary inquiry with regard to his mental and physical capacity to
commit such offence, ability to understand the consequences of the offence and the circumstances
in which he committed the offence.32 If the board comes to the conclusion that the juvenile is
incapable of being tried as adult then the juvenile shall be tried as if he has committed a serious
offence. However if the board concludes that the juvenile can be tried as an adult then the case
shall be referred to Children’s Court33. If the juvenile in conflict with law is convicted by the
Children’s Court then he/she shall not be sent to jail before the age of 21, however till the age of
21 he/she shall be kept at place of safety for reformative and correctional measures.

32
Ibid, Section 16(1)
33
Ibid, Section 19(3)

18
 Chapter- 4

Juvenile Justice(Care and Protection of Children) Rules, 2016

CHAPTER III of the Rules, 2016 deals with PROCEDURE IN RELATION TO CHILDREN IN
CONFLICT WITH LAW.

Rule 10- Pre-Production action of police and other agencies (Section 7 (1), 8 (3), 10 (2), 12 (2)
of the Act)

(1) The power of apprehension shall only be exercised with regard to heinous offences, unless it
is in the best interest of the child. For all other cases involving petty and serious offences (entailing
a punishment of upto 7 years imprisonment for adults) and cases where apprehension is not
necessary in the interest of the child, the police or Special Juvenile Police Unit or Child Welfare
Police Officer shall forward the information regarding the nature of offence alleged to be
committed by the child along with his socio-economic background to the Board and intimate the
parents or guardian of the child as to when the child is to be produced for hearing before the Board.

(2) When a child alleged to be in conflict with law is apprehended by the police, the police officer
concerned shall take immediate steps under section 10 of the Act to place the child under the
charge of the Special Juvenile Police Unit or the Child Welfare Police Officer.

(3) The Special Juvenile Police Unit or the Child Welfare Police Officer shall immediately inform:

(i) the parents or guardian of the child about the apprehension of the child, about the address of
the Board where the child will be produced and the date and time when the parents or guardian
need to be present before the Board;

(ii)the probation officer concerned, of such apprehension to enable him to obtain information
regarding social background of the child and other material circumstances likely to be of assistance
to the Board for conducting the inquiry; and

(iii)a child welfare officer or a case worker from a registered voluntary or nongovernmental
organization, as soon as the child is under its charge, who shall accompany the Special Juvenile

19
Police Unit or Child Welfare Police Officer while producing the child before the Board within
twenty four hours as per sub-section (1) of section 10 of the Act.

(4) The police officer apprehending a child in conflict with law shall:

(i) in no case send the child to lock-up or jail or keep him with adult accused;

(ii) not delay his charge being transferred to the Child Welfare Police Officer from the nearest
police station. The police officer may under section 12 (2) of the Act send the person apprehended
to an observation home only for such period till he is produced before the Board i.e. within 24
hours of his apprehension and appropriate orders are obtained as per rule 13 of these rules;

(iii) not hand-cuff, chain or otherwise fetter a child;

(iv) inform the child promptly and directly of the allegations against him through his
parent/guardian and if FIR is registered, copy of the same should be made available to the child or
copy of the police report should be given to the parents/guardian free of cost;

(v) provide appropriate medical assistance, assistance of interpreter if the child cannot understand
the language or any other assistance which the child may require;

(vi) give food to the child if he has not had his meals;

(vii) not compel the child to confess his guilt and he should be interviewed only at the Special
Juvenile Police Unit or at a child-friendly premises or child friendly corner in the police station,
which does not give the feel of a police station nor of being under custodial interrogation. The
parents, may be present during the interview of the child by the police;

(viii) not ask the child to sign any statement;

(ix) take immediate action against the perpetrators, if the version of the child reveals that he has
been subjected to any neglect/ abuse/ ill treatment by anyone, the situation of conflict has been
forced upon the child or the child has been recruited

or used for any purpose by a militant group or an outfit declared as such by the Central Government
or has been used for illegal activities by any adult or adult group;

(x) As soon as the child is apprehended, police will inform the District Legal Services Authority
for providing free legal aid to the child;
20
(xi) not subject the child to any cruel or degrading treatment;

(xii) not use any coercion on the child; and

(xiii) inform the parents/guardian about the availability of legal aid.

(5) The Child Welfare Police Officer shall be in plain clothes and not in uniform.

(6) The police officer, if found guilty of torturing or cruelty to a child, will be liable to disciplinary
action under major penalty procedure besides being prosecuted under section 75 of the Act.

(7) The Child Welfare Police Officer shall record the social background of the child and
circumstances of apprehension in every case of alleged involvement of the child in an offence in
Form 1 which shall be forwarded to the Board forthwith. For gathering the best available
information, it shall be incumbent upon the Special Juvenile Police Unit or the Child Welfare
Police Officer to contact the parents or guardians of the child.

(8) A list of all designated Child Welfare Police Officers, child welfare officers, probation Officers,
para legal volunteers, District Legal Services Authorities and registered voluntary and non-
governmental organizations in a district, Principal Magistrate and members of Boards and
members of Special Juvenile Police Unit or Child Welfare Police Officers with contact details
shall be prominently displayed in every police station.

(9) No FIR shall be registered except where the offence alleged to have been committed by the
child entails an imprisonment of 7 years and more for adults, or when such offence is alleged to
have been committed jointly with adults. In all other matters, the Special Juvenile Police Unit or
the Child Welfare Police Officer shall record the information regarding the offence alleged to have
been committed by the child in the general daily diary followed by a report containing social
background of the child in Form 1 and circumstances of apprehension and the alleged offence and
forward it to the Board before the first hearing.

(10) When the child is released in a case where the apprehension is not warranted, the parents/
guardians or a fit person in whose custody the child alleged to be in

conflict with law is released in the interest of the child, shall furnish an undertaking on a non-
judicial paper in Form 2 to ensure their presence on the dates during enquiry/ proceedings before
the Board.

21
(11) The State Government shall maintain a panel of voluntary or nongovernmental organizations
that are in a position to provide the services of probation, counselling, case work and also associate
with the Police or Special Juvenile Police Unit or the Child Welfare Police Officer, and have the
requisite expertise to assist in actual production of the child before the Board within twenty-four
hours and during pendency of the proceedings and the panel of such voluntary or non-
governmental organizations shall be forwarded to the Board.

(12) The State shall provide funds to the police or Special Juvenile Police Unit or the Child Welfare
Police Officer or case worker from the recognized voluntary or nongovernmental organization for
the safety and protection of children and provision of food and basic amenities to the child
apprehended or kept under their charge during the period such children are with them.

Rule 11- Production of the child alleged to be in conflict with law (Section 10(2) of the Act)

(1) When the child alleged to be in conflict with law is apprehended as per section 10 of the Act,
he shall be produced before the Board within 24 hours of such apprehension by the Special Juvenile
Police Unit or the designated Child Welfare Police Officer or the case worker from a voluntary or
non-governmental organisation, along with a report explaining the reasons for the child being
apprehended by the police.

(2) On production of the child before the Board, the Board may pass orders as deemed necessary,
including sending the child to an observation home or a place of safety or a fit facility, as
appropriate.

(3) Where the child produced before the Board is covered under section 83 of the Act, including
a child who has surrendered, the Board may, after due inquiry and being satisfied of the
circumstances of the child, transfer the child to the Committee as a child in need of care and
protection;

(4) The Committee may pass appropriate directions for rehabilitation, including orders for safe
custody and protection of the child and transfer to a fit facility recognised for the purpose which
shall have the capacity to provide appropriate protection, and/ or consider transferring the child
out of the district or out of the State to another State for the protection and safety of the life of the
child.

22
(5) Where the child has not been apprehended as the offences involved are petty

or serious offences (entailing a punishment of upto 7 years imprisonment for adults), and the
information is forwarded by the police or Special Juvenile Police Unit or Child Welfare Police
Officer to the Board, the Board shall require the child to appear before it at the earliest so that
measures for rehabilitation, where necessary, can be initiated though the final report may be filed
subsequently.

(6) In case the Board is not in session, the child in conflict with law shall be produced before a
single member of the Board as per the provisions laid down under sub-section (2) of section 7 of
the Act.

(7) In case the child cannot be produced before the Board or even a single member of the Board
due to apprehension during odd hours or distance, the child shall be kept by the Child Welfare
Police Officer in the Observation Home as per rule 60 D of these rules or in a fit facility and the
child shall be produced before the Board thereafter, within 24 hours of the apprehension of the
child.

(8) When a child is produced before an individual member of the Board, and an order is obtained,
such order shall need ratification by the Board in its next meeting.

Rule 12- Procedure to be followed in determination of age (Section 9 (2) and 94 of the Act)

(1) When a child comes before a Board or a Committee or a Court where the claim of juvenility is
raised, the Board or the Committee or the Court shall determine the age of the child.

(2) In every case the Court or the Board or the Committee shall determine the age of such child
within a period of thirty days from the date of submission of the application for that purpose or
first production of the child; except in cases where the Court or the Board or the Committee allows
more time for reasons to be recorded in writing

(3) wherever medical opinion is required for age determination purposes, it shall be sought from a
duly constituted Medical Board, all government hospitals shall constitute a Medical Board on a
permanent basis for the said purpose comprising of a radiologist, a dentist and a general physician
and maintain a roster of doctors who would be available on a daily basis for discharging the duties

23
of the Medical Board. The Medical Board shall give its report within fifteen days of the order of
the Board or the Court or the Committee.

(4) Where the Medical Board gives the range of the age of the child, the Court or the Board or the
Committee shall consider the age of the child on the lower side and, may, if considered necessary,
for reasons to be recorded, give benefit to the child within the margin of one year.

(5) While passing orders in such a case, the Court or the Board or the Committee shall record a
finding in respect of the age of the child and declare the status of juvenility of the child and which
shall be the conclusive proof of the age as regards such child.

(6) The copy of the order shall be given to such child or the person concerned. A copy of the order
declaring the age of the child shall be forwarded to the Special Juvenile Police Unit and to the
Child Care Institution concerned.

(7) If the age of a child is found to be 18 years or above on the date of commission of the offence,
the Board shall in writing pass an order stating the age and forward the case to the court concerned
for appropriate action. A copy of the order shall also be given to the person concerned.

Rule 13- Post-production processes by the Board (Section 7 (1), 8 (3), 14 (1) of the Act)

(1) On production of the child before the Board, the report containing the social background of the
child, including the counsellor’s report where available, and circumstances of apprehension and
offence alleged to have been committed provided by the officers, individuals, agencies producing
the child shall be reviewed by the Board and the Board may pass such orders in relation to the
child as it deems fit, including orders under sections 17 and 18 of the Act, namely:-

(i) disposing off the case, if on the consideration of the documents and record submitted at the time
of his first appearance, his being in conflict with law appears to be unfounded or where the child
is alleged to be involved in petty offences;

(ii) referring the child to the Committee where it appears to the Board that the child is in need of
care and protection;

(iii) releasing the child in the supervision or custody of fit persons or fit institutions or probation
officers as the case may be, through an order in Form 3, with a direction to appear or present a
child for an inquiry on the next date; and

24
(iv) directing the child to be kept in the appropriate Child Care Institution, if necessary pending
inquiry as per an order in Form 4.

(2) In all cases of release pending inquiry, the Board shall notify the next date of hearing, not
later than 15 days of the first summary enquiry and also seek social investigation report from the
probation officer concerned through an order in Form 5.

(3) When the child in conflict with law, after being admitted to bail, fails to appear before the
Board, on any date fixed for hearing, and no application is moved for exemption on his behalf or
no cogent reason is found for granting him exemption, the Board shall, issue to the Child Welfare
Police Officer and the Person-in-charge of the Police Station directions for the production of the
child.

(4) If the Child Welfare Police Officer fails to produce the child before the Board even after the
issuance of the directions for production of the child, the Board shall instead of issuing process
under section 82 of the Code of Criminal Procedure, 1973 pass appropriate orders under section
26 of the Act and the child would also be treated as a missing child.

(5) In cases of heinous offences alleged to have been committed by a child, who has completed
the age of sixteen years, the Child Welfare Police Officer shall produce the statements of witnesses
recorded by him and other documents prepared during the course of investigation within a period
of one month from the date of first production of the child before the Board.

(6) In cases of offences entailing a punishment upto seven years for adult offenders, the Final
Report shall be filed before the Board at the earliest and in any case not beyond the period of 3
months from the date of information to the police, except in those cases where it was not reasonably
known that the person involved in the offence was a child, in which case extension of time may be
granted by the Board for filing the Final Report.

(7) When witnesses are produced for examination in inquiry relating to a child in conflict with
law, the Board shall ensure that the inquiry is not conducted in the spirit of strict adversarial
proceedings and it shall use the powers conferred by section 165 of the Indian Evidence Act, 1872
(1 of 1872) so as to question the child and proceed with the presumptions in favour of the child.

25
(8) While examining a child in conflict with law and recording his statement during the inquiry
under section 14 of the Act, the Board shall address the child in a childfriendly manner in order to
put the child at ease and to encourage him to state the facts and circumstances without any fear,
not only in respect of the offence which has been alleged against the child, but also in respect of
the home and social surroundings, and the influence or the offences to which the child might have
been subjected to.

(9) The Board may take into account the report containing circumstances of apprehension and the
offence alleged to have been committed and the social investigation report in Form 6 prepared by
the probation officer or the voluntary or non- governmental organization, along with the evidence
produced by the parties for arriving at a conclusion about the child.

Rule 14- Preliminary assessment into heinous offences by Board (Section 14 (3), 14(5)(f)(ii),
15, 18(3), 19 of the Act)

(1) The Board shall first determine whether the child is of 16 years of age or above; if not, it shall
proceed as per provisions of Section 14;

(2) For the purpose of conducting a preliminary assessment in case of heinous offences, the Board
may take the assistance of psychologists or psycho-social workers or other experts who have
experience of working with children in difficult circumstances. A panel of such experts shall be
made available by the District Child Protection Unit, whose assistance can be taken by the Board.

(3) While making the preliminary assessment, the child shall be presumed to be innocent unless
proved otherwise; the objective of the assessment will be to evaluate the role of the child in the
alleged offence, as well as his mental condition and background;

(4) The Board shall, before taking a decision in this regard take into consideration the social
investigation report in Form 6 prepared by the probation officer or the recognized voluntary or
non-governmental organization.

(5) For the purpose of conducting a preliminary assessment, the Board shall:

(i) interact with the child alleged to be in conflict with law as well as his family members, where
available. The child may, in addition be represented through his counsel and the submissions on
behalf of the child would be considered;

26
(ii) take into account the report of investigation, statements of witnesses recorded by the Child
Welfare Police Officer, medico-legal report, forensic report and other documents prepared during
the course of investigation filed by the police before it;

(iii) take into account the medical reports of the child as are available; and

(iv) take into account mental health reports including an assessment of the cognitive maturity of
the child.

(6) The gravity of the offence by itself shall not be the sole determining factor for taking a decision
based on the preliminary assessment.

(7) While making the preliminary assessment, the Board shall be guided by the fundamental
principle that the child in conflict with law is presumed to be innocent of any malafide or criminal
intent up to the age of eighteen years, and therefore must consider whether there is material
available on record which could prima facie dispel the presumption.

(8) The Board shall take into consideration the principle of best interest of the child and the
objective of rehabilitation and reintegration of the child in the society.

(9) The Board, while conducting a preliminary assessment, may consider:

(i) whether the child also qualifies as a child in need of care and protection;

(ii) whether the child has himself been a victim of any offence in the past;

(iii) whether the child has had a history of abuse and exploitation;

(iv) whether the unlawful conduct has been done for survival;

(v) whether the alleged offence has been committed due to situational factors such as the child
being put to extreme mental trauma and cruelty to compel him to commit an offence;

(vi) whether the child had committed the offence under coercion or fear of mental or physical harm
to himself or to some other person;

(vii) whether the alleged offence has been committed under the control of adults, or with an adult
or the child has been used by a group of adults, and if so, the Board shall consider the aspect
whether independent of the influence of the adults, the child may not have committed the offence;

27
(viii) whether the child suffers from a mental illness;

(ix) whether the child is prone to taking drugs or alcohol;

(x) whether the child is under the influence of peer groups or associates with those who present
risk of harm e.g. sexual offenders, drug peddlers etc or criminals;

(xi) whether the child has been involved in violent incidents prior to the alleged offence;

(xii)whether the child has been previously involved in any offence;

(xiii) whether the child has suicidal tendencies or of harming himself;

(xiv)whether the child has been exposed to media, internet including to pornography

and media depicting violence;

(xv) personality traits and habits of the child;

(xvi)whether the child was aware of what he has done and his perception of the act; and

(xvii)whether the child has been recruited or used by any non-State, self-styled militant group or
outfit declared as such by the Central Government.

(10) Where the Board, after preliminary assessment under section 15 of the Act, passes an order
that there is a need for trial of the said child as an adult, it shall assign reasons for the same and
the copy of the order shall be provided to the child forthwith.

(11) The Board shall, in such a case, also inform the child and/ or his family members of the legal
options available to them under the Act, including the right to file an appeal under sub-section (2)
of section 101 of the Act.

(12) The Board, at the time of passing the order to transfer the trial of the case to the Children’s
Court, shall specify the date and time and the court where the child is to appear/ be produced.

(13) The Board, while transferring the trial of the case to the Children’s Court having jurisdiction
to try such offences, shall makeover the records available with it, including the reports of experts
and the social investigation report forming the basis of the preliminary assessment.

28
(14) Any statement made by the child during the interaction to the Board or the Principal
Magistrate or the Member, at the time of preliminary assessment shall not be used against the child
in any manner during the course of inquiry or trial before the Children’s Court or before the Board
itself.

Rule 15- Placement during Pendency of Inquiry (Section 5, 6 (1) of the Act)

(1) During the pendency of an inquiry, the child, if not released on bail may be sent to an
observation home or a place of safety depending on the age of the child and the attendant
circumstances.

(2) During the pendency of an inquiry, the person who is 18 years of age or above or who completes
the age of 18 years, if not released on bail shall be sent to a place of safety meant for persons above
the age of 18 years.

(3) In no case shall the child or person, during the pendency of the inquiry be sent to a lock up or
jail.

Rule 16- Completion of Inquiry (Section 14 (2), 14 (5), 18 (1) of the Act)

(1) Where after preliminary assessment under section 15 of the Act, in cases of heinous offences
allegedly committed by a child, the Board decides to dispose of the matter, the Board may pass
any of the dispositional orders as specified in section 18 of the Act.

(2) Before passing an order, the Board shall obtain a social investigation report in Form 6 prepared
by the probation officer or by a recognized voluntary or nongovernmental organization as ordered,
and take the findings of the report into account.

(3) All dispositional orders passed by the Board shall necessarily include an individual care plan
in Form 7 for the child in conflict with law concerned, prepared by a probation officer or child
welfare officer or a recognized voluntary organisation on the basis of interaction with the child
and his family, where possible.

(4) Where the Board is satisfied that it is neither in the interest of the child himself nor in the
interest of other children to keep a child in the special home, the Board may order the child to be
kept in a place of safety and in a manner considered appropriate by it.

29
(5) Where the Board decides to release the child after advice or admonition or after participation
in group counselling or orders him to perform community service, necessary direction may also
be issued by the Board to the District Child Protection Unit for arranging such counselling and
community service.

(6) Where the Board decides to release the child in conflict with law on probation and place him
under the care of the parent or the guardian or fit person, the person in whose custody the child is
released may be required to submit a written undertaking in Form 8 for good behaviour and well-
being of the child for a maximum period of three years.

(7) The Board may order the release of a child in conflict with law on execution of a personal
bond without surety in Form 9.

(8) In the event of placement of the child in a fit facility or special home, the Board shall consider
that the fit facility or special home is located nearest to the place of residence of the child’s parent
or guardian, except where it is not in the best interest of the child to do so.

(9) The Board, where it releases a child on probation and places him under the care of parent or
guardian or fit person or where the child is released on probation and placed under the care of fit
facility, it may also order that the child be placed under the supervision of a probation officer who
shall submit periodic reports in Form 10 and the period of such supervision shall be maximum of
three years.

(10) Where it appears to the Board that the child has not complied with the probation conditions,
it may order the child to be produced before it and may send the child to a special home or place
of safety for the remaining period of supervision.

(11) In no case the period of stay in the special home or the place of safety shall exceed the
maximum period provided in clause (g) of sub-section (1) of section 18 of the Act.

Rule 17- Pendency (Section 16 (3) of the Act)

(1) For the purpose of sub-section (3) of section 16 of the Act, the Board shall maintain a 'Case
Monitoring Sheet' for every case and in case there is more than one child in one case, a separate
sheet shall be used for each child. The case monitoring sheet shall be in Form 11. The said Form11

30
shall be kept at the top of each case file and shall be updated from time to time. The following
points are to be considered so far as ‘progress of inquiry' mentioned in Form 11 is concerned:

(i) Time schedule for disposal of the case should be fixed on the first date of hearing; (ii) Scheduled
date given in column No. (2) of ‘progress of inquiry' shall be the outer limit within which the steps
indicated in column (1) are to be completed; and

(2) The Board shall submit a quarterly report to the following:

(i) District Judge; (ii) Chief Judicial Magistrate or Chief Metropolitan Magistrate;

(3) The District Judge shall conduct an inspection of the Board once every quarter and appraise
the performance of the members of the Board on the basis of their participation in the proceedings
of the Board.

Rule 18- Procedure in relation to Children’s Court (Section 19 (1) and 20 of the Act)

(1) The Children´s Court, upon receipt of preliminary assessment from the Board shall conduct its
own assessment, independent of the preliminary assessment done by the Board before taking a
decision whether there is need for trial of the child as an adult or as a child.

(2) For the purpose of conducting such assessment, the Children’s Court may take the assistance
of experienced psychologists or psycho-social workers or medical specialists or other experts other
than those whose assistance has been obtained by the Board in passing the order under section 15
of the Act. A panel of such experts shall be made available by the District Child Protection Unit
whose assistance can be taken by the Children’s Court.

(3) The Children’s Court shall take into consideration the social investigation report in Form 6
prepared by the probation officer or the recognized voluntary or non-governmental organization.

(4) While making the assessment, the Children’s Court shall be guided by the fundamental
principle that the child in conflict with law is presumed to be innocent of any malafide or criminal
intent up to the age of eighteen years, and therefore must consider whether there is material
available on record which could prima facie dispel the presumption.

(5) The Children’s Court shall take into consideration the principle of best interest of the child and
the objective of rehabilitation and reintegration of the child in the society.

31
(6) For the purpose of conducting the assessment, the Children’s Court shall:

(i) interact with the child alleged to be in conflict with law as well as his family members, where
available, which may be in the presence of an expert in the field such as psychology, social work
etc.;

(ii)take into account the report of investigation, statements of witnesses recorded by the Child
Welfare Police Officer, MLC, forensic reports and other documents prepared during the course of
investigation filed by the police before the Board and forwarded to it or filed before it;

(iii)take into account the medical reports of the child as are available;

(iv)take into account mental health reports including an assessment of the cognitive maturity of
the child; and

(v)consider the factors mentioned in sub-rule (8) of rule 14 of these rules.

(7) The gravity of the offence by itself shall not be the sole determining factor for taking a decision
based on the assessment.

(8) The decision based on the assessment shall be taken within a period of one month from the
date of receipt of preliminary assessment from the Board.

(9) During the said period of one month, the child, if not released on bail shall be placed in a place
of safety.

(10) Where an appeal has been filed against the order of the Board declaring the age of the child
under sub-section (1) of section 101 of the Act, the Children’s Court shall first decide the said
appeal before conducting the assessment in terms of subrule (1) of this rule.

(11) Where an appeal has been filed against the finding of the preliminary assessment done by the
Board under sub-section (2) of section 101, the Children’s Court shall first decide the appeal.

(12) Where the appeal under sub-section (2) of section 101 of the Act is disposed of by the
Children’s Court on a finding that there is no need for trial of the child as an adult, it may remand
the matter back to the Board to dispose of the same as per the provisions of the Act and these rules.

32
 Chapter- 5

Conclusion: Views and Suggestions

The act bans corporal punishment in all its form in care institutions, the acts also defines corporal
punishment, till now no formal definition of corporal punishment was provided by any law in
force34. This was a very important and much needed provision as 65% of the Indian children are
subjected to corporal punishment35. The new act provides that “corporal punishment” means the
subjecting of a child by any person to physical punishment that involves the deliberate infliction
of pain as retribution for an offence, or for the purpose of disciplining or reforming the child. The
act doesn’t includes mental harassment as corporal punishment, though notes on clause of the act
as new by Maneka Gandhi in the Lok Sabha36, explains that mental harassment is also punishable
under Section 83 of the new act. In the light of the statistics referred, the researcher welcomes ban
on corporal punishment in care institutions, though the text of the act should explicitly include
mental harassment (eg. Sarcasm, pun, discrimination etc.) within the meaning of corporal
punishment.

The researcher submits that, the classification of crime as petty, serious and heinous crime on the
basis of quantum of punishment was perhaps the most appropriate way to classify, but the
classification will be detrimental to concept of juvenile justice. The changes in arousal and
motivation brought on by pubertal maturation between the age group of 16-18 precede the
development of regulatory competence in a manner that creates a disjunction between the
adolescent’s affective experience and his or her ability to regulate arousal and motivation37.Not
only does sensation seeking encourage attraction to exciting experiences, it also leads adolescents
to seek friends with similar interests. These peers further encourage risk taking behavior 38. The

34
Advisory for Eliminating Corporal Punishment in Schools under Section 35 (1) of the RTE Act, 2009., Ministry
of Human Resource Development, available at http://www.ncpcr.gov.in/showfile.php?lid=873 (accessed on 12th
December, 2015)
35
Study on Child Abuse: India 2007, Ministry of Women and Child Development, [New Delhi: 2007] pp. 53-54
36
See, notes on clause, Clause 83
37
Steinberg L, Cognitive and affective development in adolescence, Trends in Cognitive Sciences:2005, pp. 69–74
38
Romer D & Hennessy M 2007. A biosocial-affect model of adolescent sensation seeking: The role of affect
evaluation and peer-group influence in adolescent drug use. Prevention Science, pp. 89–101

33
crimes such as, belonging to gang of dacoits39, which is punishable with life imprisonment will
qualify as a heinous offence, also, selling adulterated food product is punishable with life
imprisonment in the state of U.P., West Bengal, and Odisha40. The commission of these crimes is
greatly influenced by the peer-pressure and the circumstances under which a juvenile lives. The
decision to try juvenile as adults for these crimes will be derogatory to the juvenile justice system.
The researcher submits that the legislature should have omitted offence affecting the Public Health,
Safety, Decency and Morals, and offence of belonging to gangs of Dacoits explicitly from the
ambit of heinous crime, as juvenile in conflict with law committing these crimes need counselling
and rehabilitation and can be reformed. However, the act provides discretion to the board, to
determine the nature and circumstances under which the act was performed, also the mental
condition of the child is to be determined, moreover Section 3(xi), lays down the principle of
natural justice, the researcher submits that though the provision of judicial discretion to the
Juvenile Justice Board, and the principle of natural justice will ensure justice but then too the
legislature would have avoided the loop-holes.

The Statement and purpose of the act further claims that there is a considerable rise in juvenile
offenders particularly with regard to heinous crime41, but NCRB statistic of 201342 shows that only
2.3 percent of all rape cases were registered against the juvenile. The Hindu’s recent study of rape
cases in Delhi’s district courts showed that the largest category of cases (40 per cent of all cases
that were fully tried) dealt with elopement and consensual sex between young couples, and the
girl’s parents filing rape charges against the boy. In most of these cases, the boy was between 18
and 20 years of age and the girl between 16 and 18 years43. Filing kidnapping cases where couples
elope or are in relationships is not a new phenomenon44.

The new act provides for inter-country adoption, this was much needed as the law with regard to
inter-country adoption, indeed, was in a state of flux until the principles governing giving of Indian
children in adoption to foreign parents and the procedure that should be followed in this regard to
ensure absence of any abuse, maltreatment or trafficking of children came to be laid down by this

39
Indian Penal Code, 1860, Section 400
40
See, Odisha Act 3 of 1999, UP Act 47 of 1975., West Bengal Act 42 of 1973
41
See, Supra Note 40
42
Crime in India: 2013, National Crime Record Beaureau, Ministry of Home Affairs[New Delhi: 2013]
43
Misunderstanding rape, condemning juveniles. Punishment: Life with/without fine., The Hindu, 14th August, 2014
44
Ibid

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Court in Lakshmi Kant Pandey v. Union of India45. There was recent controversy with regard to
judgment of Jan Balaz v. Anand Municipality46, a German couple entered into a contract with a
surrogate mother named Marthaben Immanuel Khrishti. Twin children were born. The German
couple was working in the United Kingdom and the children required Indian passports to travel.
Since their citizenship was being litigated in the courts the passport authorities withheld the
passports. Germany, the parent state of the German couple did not recognize surrogacy. The
Supreme Court denied the passports but granted an exit permit to the children and the German
authorities decided to give the couple an opportunity to adopt the children and fight for their
rights47 the matter is still under consideration in the Supreme Court. In furtherance of the issues
and problems discussed, the researcher welcomes the provision of inter-country adoption in the
new act.

45
1984 SCR (2) 795
46
AIR 2010 Guj 21
47
Union Of India & Anr. Vs. Jan Balaz & Ors, Civil Appeal No(s). 8714/2010

35
 BIBLIOGRAPHY

PRIMARY SOURCES
 The POSCO ACT & RULES, 2012
 The INDIAN PENAL CODE,1860
 CODE OF CRIMINAL PROCEDURE

SECONDARY SOURCES

BOOKS

 Child Welfare: An analysis of some of the socio-legal legislations in India,Prof. Shilpa

Khatri Babbar, IOSR Journal of Humanities And Social Science, Volume19, Issue 8,
Ver. II (Aug. 2014), pp 54-60.

 The Protection of Children from Sexual Offences (POCSO), Neha Gupta, N.K.Aggarwal
& M.S. Bhatia, Delhi Psychiatry Journal, Vol. 16 No. 2 (October 2013).

WEBSITES

 https://www.vakilno1.com/legalviews/protection-children-sexual-offences-law-says.html,
 http://www.childlineindia.org.in/The-Protection-of-Children-from-Sexual-Offences-Act-
2012.htm,
 http://archive.asianage.com/columnists/crimes-passion,
 http://www.civilservicesias.com/2014/06/posco-act-2012.html,
 http://myblog-rajbhu.blogspot.in/2013/07/section-154-crpc-first-information.html,
 http://devgan.in/crpc/section/164/#ixzz5EvQeKC00,

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