DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY,

LUCKNOW
SESSION- 2017- 2018
CRIMINAL LAW

PROJECT
ON
GENERAL EXCEPTIONS: ACT OF A CHILD

UNDER THE SUPERVISION OF: SUBMITTED BY:

MR. MALAY PANDEY & K. A. PANDEY ANAND PRAKASH YADAV

ASSISTANT PROFESSOR (CRIMINAL LAW) B.A. LL.B
DR. RMLNLU, SEMESTER- IVTH
LUCKNOW ENROLMENT NO. 160101030
 GENERAL EXCEPTIONS- ACT OF A CHILD

TABLE OF CONTENTS

INDEX OF AUTHORITY .................................................................................................................... 3

INTRODUCTION ............................................................................................................................... 4

GENERAL EXCEPTIONS UNDER CHAPTER IV ................................................................................ 5

ABSENCE OF CRIMINAL INTENT ................................................................................................ 6

ACT OF A CHILD ..................................................................................................................... 6

ASSUMPTION AND PROOF ....................................................................................................... 8

STATUS OF PERSON OVER 12 ......................................................................................................... 9

CRIMINAL LIABILITY OF A CHILD: CHANGES BROUGHT ABOUT BY THE JJ ACT, 2000 AND
2015............................................................................................................................................. 9

CONCLUSION ................................................................................................................................ 12

BIBLIOGRAPHY ............................................................................................................................. 13

2|Page
 GENERAL EXCEPTIONS- ACT OF A CHILD

INDEX OF AUTHORITY

Cases

Hari Ram v. State of Rajasthan, (2009) 13 SCC 211.................................................................... 10

Hiralal Mallick v. State of Bihar, (1977) 4 SCC 44........................................................................ 7
R. v. Owen, (1830) 4 C&P 236....................................................................................................... 8
Salil Bali v. Union of India, (2013) 7 SCC 705. ........................................................................... 10
Subramaniyan Swamy v. raju, (2014) 8 SCC 390. ....................................................................... 10
Ulla Mahapatra v. R., AIR 1950 Ori. 261. ...................................................................................... 8

Statutes

Indian Penal Code, 1860, Section 6. ............................................................................................... 5

Indian Penal Code, 1860, Section 82. ............................................................................................. 6
Indian Penal Code, 1860, Section 83. ............................................................................................. 6
Juvenile Justice (Care and Protection of Child), Act, 2015, Section 2(12). ................................... 9
Juvenile Justice (Care and Protection of Child), Act, 2015, Section 2(13). ................................. 10
Juvenile Justice (Care and Protection of Children) Act, 2000, Section 16. .................................. 10
Juvenile Justice (Care and Protection of Children) Act, 2015, Section 2(33). ............................. 11
The Indian Evidence Act, 1872, Section 105. ................................................................................ 5

Books

Commentaries on Indian Penal Code, Mayne & John D ................................................................ 8

Indian Penal Code, B. M. Gandhi, 4th edition, 119. ........................................................................ 6

3|Page
 GENERAL EXCEPTIONS- ACT OF A CHILD

INTRODUCTION

Introduction of Indian Penal Code in 1860 brought with it the criminal liabilities and
punishments for the offences of criminal nature. Since 1860 there have been many changes in the
IPC and many provisions have been added. While dealing with any offence under Indian Penal
Code mostly the requirement of mens rea is sought. And, of course, mens rea needs to be carved
out when the act of crime has been committed and that is Actus reus. Basically the concept of the
Indian Penal Code is formulated on these concepts; actus reus and mens rea. But again this is no
thumb rule that this applies for all the provisions of the Indian Penal code. Because if we look
into the concept of strict liability offences there is no requirement for mens rea although it can’t
be said that mens rea is irrelevant but what is required is the knowledge on the part of the
offender like in case of negligence.

With that it can also be argued that a person may be prosecuted who has committed certain act
which is criminal in nature but lacked mens rea and knowledge on his part. Then what should be
done in this case when person completely lacked guilty mind and didn’t have knowledge on
his/her part. For that Indian Penal Code provides for general exceptions mentioned in the
Chapter IV of It. The basic idea behind these exceptions is that they negate mens rea or
knowledge on the part of person who has committed any act of criminal nature. All provisions of
the general exception expressly or impliedly propound that there should not be any guilty mind
and if not guilty mind then knowledge on the part of the individual or whatever. And, of course,
a person who didn’t have knowledge or lacked mens rea should not be held guilty only on the
basis of actus reus.

Now moving forward to another aspect of mens rea where it deepens on the basis of age; adult
and children. What can be done if a child who can’t form the mens rea committed an act of
criminal nature? This is the state of mind and based on the principle doli incapax. Arguendo
again the above mentioned principle will apply that the child should not be held guilty for the
offence for which he was not able to form mens rea and lacked any knowledge on his /her part.

4|Page
 GENERAL EXCEPTIONS- ACT OF A CHILD

GENERAL EXCEPTIONS UNDER CHAPTER IV

General exceptions are mentioned under the Chapter IV of the Indian Penal Code, 1860 and
spread from section 76 to 106. As the name suggests these are the exceptions of what has been
mentioned in the Code. Indian Penal Code contains penal provisions and these are the exceptions
in which no penal liability can be put on the person/s and after proving these exceptions only
based on preponderance of probability the defendant is immune from any criminal liability. The
basic concept behind the introduction of general exceptions is that in all these provisions from 76
to 106, there is lack guilty mind or knowledge on the part of prosecuted person. And if mens rea
is absent from the offence committed by the person/s then to some extent the person would be
considered as innocent.

A person can’t be called accused unless it has been proven so. It is on the prosecutor to prove it
beyond reasonable doubt and if a person is claiming defense under any of the provision of
general exception then the defendant needs to prove for the same but only on preponderance of
probability. It can, easily, be propounded that the burden on the prosecutor is more than the
defendant. In the word of Huda1 general exceptions are the general condition of non-imputation.

Section 105 of the Indian Evidence Act, 1872 reads; When a person is accused of any offence,
the burden of proving the existence of circumstances bringing the case within any of the General
Exceptions in the Indian Penal Code (45 of 1860), or within any special exception or proviso
contained in any other part of the same Code, or in any law defining the offence, is upon him,
and the Court shall presume the absence of such circumstances.2 And if we are talking about the
application of the aforementioned general exeptions then it is applicable on all the provisions of
the IPC3. The general exeptions chapter id divided into seven exception or to be more precise
seven defenses; Mistake of fact (and, of course, does not provide mistake of law as a defense),
Judicial act, accident, absence of criminal intention, act done by consent, trifling act and right of
private defense. All these provision expressly or impliedly concludes that there should not be any

1
Huda is the principle of the law of the crime in British India (1982).
2
The Indian Evidence Act, 1872, Section 105.
3
Indian Penal Code, 1860, Section 6.

5|Page
 GENERAL EXCEPTIONS- ACT OF A CHILD

criminal intention or knowledge behind the actus reus. And if can’t be proved by the defense by
preponderance of probability then these exeptions can’t be claimed.

ABSENCE OF CRIMINAL INTENT

One of the aforementioned general exceptions is ‘absence of criminal intent.’ Arguendo in the
realm of IPC, every intention which is there on the part of the accused is criminal by the virtue of
its provision. Criminal intent means purpose or design of doing an act forbidden by the criminal
law.4 Although all the general exception provision negates the existence of mens rea still this part
is using the term absence of intent. The plain reading of this indicates that there should be no
mens rea on the part of the actor but still if there is knowledge, not mens rea, and then what
should be the consequences. So the text includes both intention and knowledge in clear terms.

ACT OF A CHILD

Section 82 and 83 of the Indian Penal Code talks about the consequences of the offences
committed by the children. And point should be noted here that the consequence will defer and
will be based on a demarcation of age. And that ‘below 7’ and from ‘above 7 to under 12.’ This
is the actual text which has been extracted from the relevant sections. Section 82 reads; nothing
is an offence which is done by a child under seven years of age.5 And Section 83 mentions;
nothing is an offence which is done by a child above seven years of age and under twelve, who
has not attained sufficient maturity of understanding to judge the nature and consequences of his
conduct on that occasion.6

The plain reading of the Section 82 suggests that if a child who has committed any offence
which should be penalized under Indian penal Code should and must not be penalized/ punished.
Because of the existence assumption that the child is not able to judge the consequence of the
criminal act and obviously there is no need to prove that he lacked any such thing. The judgment
will be based on only whether he is under seven or not and presumption will apply impliedly.

4
Indian Penal Code, B. M. Gandhi, 4th edition, 119.
5
Indian Penal Code, 1860, Section 82.
6
Indian Penal Code, 1860, Section 83.

6|Page
 GENERAL EXCEPTIONS- ACT OF A CHILD

Means an infant under seven years of age is protected under the term doli incapax (incapability
of holding mens rea) who is unable to decide good and bad side of his act. The principle that was
laid down in Section 82 absolves the infant not only from any crime committed under IPC but
also from any other penal statute.7

And now turning to Section 83 which says that if a child who is above seven and below 12 may
be exempted if is proved that he lacked sufficient maturity to understand the nature and
consequence of the conduct at the time when he committed it. There must be raised a question
that over a night, can a child form a mental state in which he can understand the nature of the
crime. But answer to this question is straight that still he is being tried as an adult but as a child
and the question remains the same that he was able to judge or not. It can be stated that
presumption in the previous section now become question in the present section and that need to
be decided. Interestingly one point should be noted in the Section 83 that it says ‘at the time of
the commission’ means the question should be asked whether he/she ‘was able to form the
mental state’ not ‘is able to form the mental state.’

The next question in this sequence arises what about a child who is of exact 7 years old and what
is his liability. Whether he should be treated under section 82 or 83 and what should be the
status? The answer to this question is that the child of 7 years of age must be treated under
section 82 not in 83.

Moving again on the texts of the section 83 that says that child must not have attained sufficient
maturity to form the relevant consequence of his/her act. While deciding defense under this
exception maturity is of paramount importance because it can be, to some extent, said that
maturity is not part of the mens rea but still forms the knowledge on the part of the child.
Maturity in its clear term suggests that if the child has enough maturity then it means he had
knowledge about the consequence of his criminal act. So it can be argued that maturity if doesn’t
form mens rea but it forms knowledge and that in clear sense replace mens rea for the same
consequence for any offence which has been committed by the child if there would have been
mens rea.

7
Hiralal Mallick v. State of Bihar, (1977) 4 SCC 44.

7|Page
 GENERAL EXCEPTIONS- ACT OF A CHILD

ASSUMPTION AND PROOF

The presumption of innocence can be rebutted upon evidence of mischievous discretion8 and that
is wrongfulness of conduct. But the concept of mischievous discretion can’t be applied under age
of seven because regarding this there is irrefutable presumption that the child below seven can’t,
in any case, have enough maturity to judge his act good or bad. But this is applied over the age of
seven years and below 12 years because in this what is required to be carved out is the mature
intellect of the child. As the presumption exists that a person can’t be held guilty unless proved
so then what should be the presumption in the court when a child (above 7 and below 12), of
course, appears for the hearing? It can’t be presumed that the child had enough maturity and
defender have to prove it in negative because of certain reasons. First, court doesn’t presume a
person guilty unless proved so and if court, in present scenario, assumes that the child had
enough maturity then this would lead to conviction. Means having a presumption that child had
enough maturity is equivalent to having a presumption that the child is guilty before the
prosecution has proved the same. Second, in the case of 7 years it is strongly assumed that child
doesn’t have, anyhow, enough maturity then how it can be presumed that after a week when the
children becomes more then 7 had enough maturity while he stands for the trial. This assumption
would lead to awkwardness and many criticisms.9 Third, if prosecution is alleging that the child
had enough maturity to understand the consequences of his/her act, then he must prove so and if
the court already has assumed that child had enough maturity then there is no need of evidence
or arguments from prosecution. Thus the presumption should be that the child was not mature
when he committed the crime and this need to be proved by the prosecution beyond reasonable
doubt. As held in Ulla Mahapatra v. R.10 that the child should not know the nature and
consequence for the act done by him at the time of the commission.

At first the prosecution needs to prove beyond reasonable doubt that the child has committed
crime and he should meet with the penal consequences of the Indian Penal Code and if the
defender is claiming with Chapter IV that the child is not mature enough then he need to prove it

8
R. v. Owen, (1830) 4 C&P 236.
9
Commentaries on Indian Penal Code, Mayne & John D, p. 367.
10
Ulla Mahapatra v. R., AIR 1950 Ori. 261.

8|Page
 GENERAL EXCEPTIONS- ACT OF A CHILD

only on preponderance of probability. The burden on prosecution is more than defendant because
he has to prove the liability of the children on a very strong irrefutable presumption.

Now if we have a look at the position of these two sections then it can be concluded that they
have some place in Indian Penal Code but now Juvenile Justice (care and Protection of Children)
Act, 2015 has reduced their applicability mostly of section 83 because children below 7 are still
presumed to have enough maturity and they are immune.

STATUS OF PERSON OVER 12

Now the question arises that the general exception only deal with child under twelve years of age
and what is the status of the person who has committed crime and above twelve and what should
be the guiding statute for that effect. It can’t be said or presumed that above twelve years of age a
child be tried as adult. Because the clear demarcation between a child and an adult is at age
eighteen. Then how these people should be tried and for that effect there is a provision of
Juvenile Justice (Care and Protection of Children), 2000 which was amended in 2015 with some
changes after terrible incident.

CRIMINAL LIABILITY OF A CHILD: CHANGES BROUGHT ABOUT BY THE JJ ACT, 2000

AND 2015

Introduction of Juvenile Justice (Care and Protection Act), 2000 brought some changes in the
realm of children’s liability for any criminal act. Point here which is of focal important is that
every person below the age of 18 must be treated as child and this particular act provides for self-
sufficient mechanism for dealing with children below mentioned age. Section 2(12) defines;
“child” means a person who has not completed eighteen years of age11. And Section 2(13)
reads; “child in conflict with law” means a child who is alleged or found to have committed an
offence and who has not completed eighteen years of age on the date of commission of such
offence.12 And it should be noted that the act has retrospective effect not prospective. Earlier
Juvenile Justice Act, 1986 defined the age of child 16 for boys and 18 for girls.

11
Juvenile Justice (Care and Protection of Child), Act, 2015, Section 2(12).
12
Juvenile Justice (Care and Protection of Child), Act, 2015, Section 2(13).

9|Page
 GENERAL EXCEPTIONS- ACT OF A CHILD

In the Hari Ram v. State of Rajasthan13 the court held that under this scheme child below the age
of 18 years treated under JJ act, 2000 and while delivering judgment put emphasis on two things
that; the act has retrospective effect and the age would be the one on which the offence has been
committed even if the trial starts after 18 years.

JJ Act prohibits adversarial trial14 for the children defined under the act and propound that the
case would be inquired by Juvenile Justice Board. Further the question arises what would be the
consequence for the trial when the juvenile has committed it with another person who is adult.
Still in this case both will be tried separately.

The nature of the JJ Act, 2000 is restorative not retributive15 because it is presumed that till 18
years of age children in conflict with the law can be redeemed to mainstream society instead of
becoming criminal in future. Section 16 of the JJ Act, 2000 reads; Notwithstanding anything to
the contrary contained in any other law for the time being in force, no juvenile in conflict with
law shall be sentenced to death or life imprisonment, or committed to prison in default of
payment of fine or in default of furnishing security.16 It is also mentioned in the Section that if
the child has committed a grave offence and is above 16 then for the interest of other juveniles
who are there in Juvenile house and for his sake he should be kept somewhere where government
deems fit.

JJ Act, 2000 was challenged in the case of Subramaniyan Swamy v. raju17 on two grounds; JJ act
classifies all the juvenile in one category irrespective of their mental maturity and gravity of
offence committed by them and on the ground that a separate system for dealing with juvenile
replacing the criminal justice system but the court held that the legislature have decided year 18
as demarcation between child and adult and legislating an act for a different category is not
against Article 14 of the constitution or criminal justice system.

But after the Nirbhaya case this legislation attained more focus because people demanded for
more strict provision. Consequently, an amendment took place within JJ Act and named JJ Act,
2015. The most important amendment which was there in the JJ act was that now there is a

13
Hari Ram v. State of Rajasthan, (2009) 13 SCC 211.
14
In adversarial trial lawyers present their side before judge or jury who decide the case on that basis and this
system is prevalent in common law countries.
15
Salil Bali v. Union of India, (2013) 7 SCC 705.
16
Juvenile Justice (Care and Protection of Children) Act, 2000, Section 16.
17
Subramaniyan Swamy v. raju, (2014) 8 SCC 390.

10 | P a g e
 GENERAL EXCEPTIONS- ACT OF A CHILD

separate category still irony exists in that. It is amended that children between 16 to 18 who has
committed an offence of heinous nature18 must be tried as an adult but not in general court but in
court of children. And after conviction those children will be detained in a place of safety until
they reach the age of 21. Still it is pointed out that no child shall be punished with death penalty
or life imprisonment. Irony here is that person should be treated as adult but can’t be tried in
general court. And still question exists as to what constitute heinous crime.

18
Juvenile Justice (Care and Protection of Children) Act, 2015, Section 2(33).
This section says that the heinous crimes are those crimes for which the minimum punishment in IPC or in any other
provision is imprisonment for 7 years.

11 | P a g e
 GENERAL EXCEPTIONS- ACT OF A CHILD

CONCLUSION

It can be deduced from the aforementioned provisions and argument provided that the criminal
act of the child is within the exceptions mentioned in the Chapter IV of the Indian Penal Code
and section 6 of the mentioned Code makes it clear that these general exceptional provisions are
applicable for the all the provisions of it. And if the criminal act has been performed by an actor
who is a child within seven years of age then he is completely immune from the penal provision
of the Indian Penal Code, 1860 and this provision (Section 82) not only include the children
below age 7 but also include children who has just celebrated his seventh birthday. Further,
liability of the children who falls within the category from age 7 to 12 comes, which through
section 83 makes it clear that they are immune from penal provisions if it is proved by the
defendant that they didn’t form mature intellect to judge the consequence of their act and this
needs to be proved on preponderance of probability. What differ these provisions is the fact that
the assumption, which is there in section 82 as strong irrefutable assumption, that the children
are not of mature intellect to understand the nature and consequence of their act, is question to be
determined under section 83. Consequence in the sense that they are not mature enough to
understand the consequence for themselves and for the victim.

Further, aforementioned question was answered regarding the status of the person above 12 years
of age. Juvenile Justice (care and Protection of Children) act, 2000 and through a subsequent
amendment the act of 2015 deals with the matter regarding children above 12 years of age. This
statute says that a juvenile can’t be punished and the same was held in the case of Salil Bali v.
Union of India where Hon’ble Supreme Court held that JJ act is restorative in nature not
retributive.

After the Incidence of Nirbhaya, the legislators were bound to amend certain provisions of JJ
Act, 2000 and there comes into existence of JJ Act, 2015. This categorized persons on the basis
of both; age and gravity of crime but not on single basis. Actually it categorized but in real sense
it didn’t.

12 | P a g e
 GENERAL EXCEPTIONS- ACT OF A CHILD

BIBLIOGRAPHY

 Indian Penal Code, B. M. Gandhi, edited by K. A. Pandey, 4th Edition.

 Commentaries on Indian Penal Code by Mayne & John D.

Other Sources

 SCC Online
 Manupatra

13 | P a g e