CHAPTER - I

INTRODUCTION

Children are the pillars of every progressive society and are considered to
be the future builders of the modern world, henceforth are the supreme assets of
any country and therefore every effort should be made to overcome the problem of
juvenile delinquency generated with the advent of modernization and urbanization.
Today crimes by children or in other words crimes by juveniles is not only
unbridled but is exhibiting a very brutal color of mind set of these young
offenders. The problem of juvenile delinquency is undoubtedly tragic to human
interest as it is not only confined to our country but also cuts across national
boundaries. Juvenile delinquency laws are inadequate to the extent of determining
the age of juvenile when the offence is committed. The concept of juvenile
delinquency to widen its limits has drawn adverse criticism on the ground that it is
neither necessary nor desirable to use police and courts in private matters which
can be well tackled by family themselves. All nations whether it be developed or
under-developed desires their youth to refrain from any kind of criminal or anti-
social or terrorist activities and therefore, these nations are constantly defining and
re-defining their local laws which can ameliorate the future of juveniles. Juveniles
are future of tomorrow and the need of the hour is to save our future generations
from going astray. With change in time and nations on the road to development,
there is a drastic change in the offences committed by juveniles, what to say, from
theft to dacoity, murders, rapes, hacking, cyber-crimes, terrorism and many other
un-imaginable activities. The purpose behind any juvenile law is not to punish a
juvenile but is to safeguard him against the evils of crime society. Another aspect
of Juvenile law is to reform and rehabilitate juveniles so as to evolve themselves as
crime-free human beings. Also, through punitive measures, to act as a deterrent to
habitual young offenders.

1
 Juvenile Justice System

Everywhere children are at a higher risk of vulnerability, facing abuses and

exploitations by the powerful class. Protection of every child is based on the
interdisciplinary/multi - sectoral measures, which guarantees the survival and
overall development of a child with respect to their rights.

Who is a Child?

When we talk science, childhood refers to a connecting stage between

adulthood and infancy. In India, the age limit up to which an individual ceases to
be a child is controversial and in constant debate. According to the Indian census
and various government programmes, any individual who is 14 years of age or
below is considered to be a child. According to the UNCRC, this age limit
advances to 18 years which can also been ratified by 192 member countries. This
number varies from country to country as per their own discretion, for e.g. like in
the US the age of majority is 21 years. However, in India there is no single number
defining the age of a child, rather they vary as per the laws formulated.

In general sense, an individual who has not attained the age of 18 years is
considered to be a child. In today’s world, many countries have adopted the
principle of doli incapax1 ( children below the age of 7 years), which refers to the
knowledge of a child regarding the crime he/she has committed or any wrong
doings. In addition to this, as per our penal laws, children within the age bracket of
7-12 years can only be convicted, conditions apply that the crime committed by
them is heinous in nature and they have an understanding of the consequences that
they are going to face on legal trails.

The child who has not attained the age of 16 years (in boys) and 18 years
(in girls) were previously referred to as the juveniles, until the JJCPC Amendment
Act of 2000 came into effect in which all individuals under the age of 18 years are
considered as juveniles. As per the Act, there shall be no death penalty or
imprisonment for the juveniles in case of payment default or default of furnishing
security.

1
Section 82 of IPC

2
 The Indian Penal Code (IPC) 1860 states that no child below the age
of 7 years can be subjected to criminal proceedings (Section 82 of IPC).
According to Section 83 of IPC, in case of a child who suffers from mental
disability and is not able to understand the consequences of the act or action, then
the responsive age is raised to 12 years. In case of a girl child, she needs to attain
16 years of age for sexual consent, unless she is married, in which case, the
minimum age needs to be 15 years. For protection against kidnapping, and such
related offenses, the age limit is 16 years for boys and 18 years for girls.

There are many special privileges enjoyed by the children between the
age of 6 and 14 years, which categorizes them to avail free and compulsory
education as per The Constitution (Eighty-sixth Amendment) Act, 2002 inserted
Article 21-A in the Constitution of India so as to provide the free and
compulsory education of all the children in the age group of 6 to 14 years as a
Fundamental Right in such a manner as that the State may, by the law, determine.
The Right of Children to the Free and Compulsory Education (RTE) Act, 2009,
which does represents the consequential legislation that is envisaged under the
Article 21-A, means that the every child has a right to the full time of the
elementary education of the satisfactory and the equitable quality in a formal
school which does satisfies certain essential norms and the standards2 and
Amendment of the article 51A.- In the article 51A of the Constitution, after the
clause (J), the following clause shall be added, namely:- "(k) who is a parent or the
guardian to provide the opportunities for education to his child or, as the case may
be, ward between the age of 6 and 14 years of age 3." the latter defining the roles
and responsibilities of the parents/guardians to provide their children with better
opportunities for education. Article 45 held the government responsible for
providing the children with early childhood care and education who are below 6
years of age.

Child and his age as stated in various Enactments

The Child Labour (Prohibition and Regulation) Act, 1986: According to

the Act, the individuals who are 14 years or below are considered to be children

2
Article 21 (a) The Constitution of India
3
Article 51(k) The Constitution of India
3
 The Factories Act of 1948 and the Plantation Labour Act, 1951: According
to this Act, an individual who has not attained the age of 15 years is considered
as a child. An individual who is between 15-18 years of age is considered as an
adolescent. The adolescents can work in factories for utmost 4 and half hours a
day, till they are declared medically fit.

The Motor Transport Workers Act, 1961 and Beedi and Cigar Workers
(Conditions of Employment) Act 1966: According to these Acts, any individual
below 14 years of age is considered as a child.

The Merchant Shipping Act, 1958 and Apprentices Act, 1961: These
Acts have put forth some limitations on employment of children below 14 years of
age.

The Mines Act, 1952: As per this Act, individuals who have completed 18
years of age are considered as adults, thus making it clear that those who have not
attained this age will be considered as children.

Prohibition of Child Marriage Act, 2006: As per this Act, the age of
majority is set at 21 years for the males and 18 years for the females.

The Indian Majority Act, 1875 and Guardians and Wards Act of 1890:
According to both the Acts, the majority is reached on completion of 18 years of
age.

The Hindu Minority and Guardianship Act of 1956 and the Hindu
Adoption and Maintenance Act of 1956: This Act is in line with personal laws of
Muslim, Christian and Zoroastrian that also supports the 18 years of age as the
upper bracket for attaining majority.

The Juvenile Justice Act of 1986: The Act considers boys below 16 years
and girls below 18 years of age as children.

The Juvenile Justice (Care and Protection of Children) Act, 20004:

However, in the modified JJ Act of 2000, the age for defining a child was raised to
18 years for both the genders. Many professionals consider and are in support of
considered 18 years as the legal definition of a child in all matters, because of its
4
Under Section 7A of JJ Act 2000
4
 universal acceptance.
Claim of Juvenility

The “claim of Juvenility” is decided by the Juvenile Justice (JJ) Board prior
or even after the court proceedings. Rule 12 of the Juvenile Justice Rules, 2007
needs to be take into consideration by the JJ board for determining the claim. Such
an example can be derived from the case of KulaiIbrahim v. State of Coimbatore5.
It court stated the right of an accused to claim for the juvenility during any time of
the trial or even after it, which has mention under the Section 9 of the JJ Act ,
2015.

In case of Deoki Nandan Dayma v. State of Uttar Pradesh6and also in the

case of Satbir Singh and others v. State of Haryana7 the court considered school
register entry of the child which has his/her date of birth, which is admissible
evidence in determining the real age of the child and this can also help in
determining whether the accused is a juvenile or a child.

In case of Krishna Bhagwan v. State of Bihar 8, the court highlighted the

trial’s perspective under the JJ board, where the date confirming the juvenile’s age
needs to be mentioned on the offence committed.

In the case of Arnit Das v. State of Bihar9, the Supreme Court stated that
the date of presentation of the accused before the competent authority should be
the date when the claim of juvenility should be done.

Juvenile Justice (Care and Protection of Children) Act, 2015:

The Act focuses on the children who are in conflict with the law, and are in
need of care as well as protection from any vulnerability. This can be achieved by
catering to their basic needs by taking proper care, giving them protection, aiming
at their overall development, treatment of any ailments, and social re-integration,
through adoption of a child-friendly method that is in best interest with the
children. The Act also states rehabilitation of these children by the responsible
5
AIR 2014 SC 2726
6
[(1997) i0 SCC 525
7
AIR 2005 SC 3549
8
AIR 2005 SC 3549
9
AIR 2000 SC 748
5
 institutions and bodies.
The constitutional provisions give power and impose duties and prohibition of
discrimination on grounds of religion, race, caste, sex or place of birth10-

1. The State shall not discriminate against any citizen on the grounds only of
religion, race, caste, sex, and place of birth or any of them

2. That no citizen shall, on the grounds only of the religion, race, caste, sex, place
of birth or any of them, be subject to any of the disability, liability, restriction or
condition with regard to

a. The access to shops, public restaurants, hotels and palaces of public

entertainment; or

b. That the use of the wells, tanks, bathing ghats, roads and the places of public
resort maintained wholly or partly out of the State funds or dedicated to the use of
the general public

c. Nothing in this article shall prevent, the State from making any special
provision for the women and the children

d. Nothing in this article or in clause (2) of Article 29 shall prevent the State from
making any special provision for the advancement of any socially and
educationally backward classes of the citizens or for the Scheduled Castes and the
Scheduled Tribes

- The State shall in particular, direct its policy towards the securing11 -

a. That the citizen, the men and the women equally, have the right to an
adequate means of the livelihood;
b. That the ownership and the control of the material resources of the
community are so distributed as best to sub serve the common good;
c. That the operation of the economic system does not result in the
concentration of the wealth and means of the production to the common
detriment;

10
Article 15 Clause 3 and (e) and (f )
11
Article 39
6
 d. That there is the equal pay for the equal work for both men and women;
e. That the health and the strength of the workers, the men and the women,
and the tender age of the children are not abused and that citizens are
not forced by economic necessity to enter avocations unsuited to their age
or their strength;
f. That the children are given the opportunities and the facilities to develop in
a healthy manner and in conditions of freedom and dignity and that the
childhood and youth are protected against the exploitation and against the
moral and material abandonment.
It is a provision for the free and the compulsory education for the children. The
State shall endeavor to provide, within a period of 10 years from the
commencement of this Constitution, for free and compulsory education for all the
children until they complete the age of 14 years12.

And one of the Directive Principles which directs the State to raise the level of the
nutrition and the standard of living and to improve the public health as among its
primary duties and, in particular, the State shall Endeavour to bring about
prohibition of intoxicating drinks and drugs13, respectively in order to ensure that
the children’s needs are met and their rights are protected.

Last decades have marked an increasing trend in the crime rate by children who
are under the age group of 16 years. This might be because of the environment
where they live, grow and develop, which includes their economic status,
educational facilities, parental care and protection, and the society as a whole. At
times, young children (5-7 years) are also being used as a means to commit various
crimes.
The “Nirbhaya Delhi Gang Rape Case14” that happened on December 16, 2012,
set the nation, the legal professionals and socialists aback. There were debates and
discussions happening around the country. One of the accused in this rape case
was just 6 months younger of becoming an adult. However, as the nature of crime
committed by the juvenile was heinous in nature, this led to the introduction
of a modified law, i.e. the “Juvenile Justice (Care and Protection) Act, 2015,

12
Article 45
13
Article 47
14
(arising out of S.L.P (Criminal) Nos. 5027-5028 of 2014
7
which overruled the previous Acts.

As per this new Act, the juvenile between the age group of 16-18 years
would be treated as adults in case of such heinous crime. The researcher has
further elaborated on the pros and cons of the facts in the coming chapters and
critically discusses the juvenile justice system in Indian perspective.

Principles Related to Administration of the JJ Act:

The Union and state governments along with the institutions and boards shall
abide to the fundamental principles required in administration of the Act, some of
which has been listed below:

i. Principle of presumption of innocence: Any child, who has been charged of

criminal offense, had to be declared innocent till he/she has reached the age
of 18 years.
ii. Principle of dignity and worth: All humans should be treated with equal
dignity and rights.
iii. Principle of participation: Every child needs to be heard and allowed to
participate in the decision making process.
iv. Principle of best interest: The decisions taken for the child should be in
their best of interest aiming at their overall development.
v. Principle of family responsibility: The Child’s responsibility should be
taken by his/her patents (biological or foster).
vi. Principle of safety: All kinds of safety precautions need to be taken to
ensure protection of the child.
vii. Positive measures: In order to prevent vulnerable environment for the
child, resources of the community as well as the family needs to be
mobilized to promote development, well-being, and an inclusive
opportunity for the child to develop.
viii. Principle of non-stigmatizing semantics: Accusatory words should be
avoided in case of a child.
ix. Principle of non-waiver of rights: No waiver of any fundamental rights of a
child is permissible, whether sought by the parents or the child itself.
x. Principle of equality and non-discrimination: No child shall be

8
 discriminated on the basis of religion, gender, caste, birth place, disability,
etc. All children should have equal rights.
xi. Principle of right to privacy and confidentiality: The judicial process shall
be intended to protect the right to privacy and protection of every child.
xii. Principle of institutionalization: As the last resort, the child can be placed
in the institutional care.
xiii. Principle of repatriation and restoration: All children in the institutional
care have right to reunite with their families before they are scanned under
the JJ Act.
xiv. Principle of fresh start: The past records of misconduct are erased in case
of a child, except for few exceptional cases. Principle of natural justice:
Every child has the right to free and fair hearing without bias.

SAILENT FEATURES OF JUVENILE JUSTICE SYSTEM

1. Primary law for all children in India who are in conflict with the law as well as
who are in need for care and protection.

2. The law defines a juvenile as well as child, an individual who has not attained
18 years of age.

3. Rehabilitation and social reintegration are the primary aims of the JJS.

4. The children with offence are presented before a board named as the JJ board
rather than courts.

5. Child Welfare Committee has replaced the existing Juvenile Welfare Boards.

6. Special provision for placing a juvenile in conflict with law under the
charge of special juvenile police unit (SJPU).

7. To create a separate system of justice –dispensation.

8. Distinct from criminal justice system for adults.

9. Effective involvement of informal social arrangements – family and community.

10. Child friendly juvenile justice system.

9
 CATEGORIES OF CHILDREN:

The categories of children are divided as children in conflict with law and
children in need of care and protection15.

Introduction

As the children belong to lesser age groups and still in the stage of development,
they are open to all forms of exploitation and abuse, more easily than any adult,
thus enshrining age as one of the reasons for high risk of vulnerability of a child.
Another risk factor can be attributed to the capability of a child to protect him- self
or her-self. This calls for redefining the self-protection concept.

When a child is exposed to vulnerable factors, it presents hindrance to the

emotional and physical growth of the child. Thus, self-protection ensures security
and healthy well-being of the child by self or any responsible adults. Certain
factors inducing vulnerability includes:

(a) Age: Younger children in the age group of 0-6 years are in need of utmost
care and protection.
(b) Physical and mental disabilities: Children who are in special needs
require protection as they are more prone to vulnerability.
(c) Provocative behaviors: Due to provocative behaviors of the adults the
children might be neglected from their basic rights against abuse and
misconduct.
(d) Powerlessness: This kind of situation is faced by a child because of the
surrounding environment that he/she lives in.
(e) Defenselessness: A child is defenseless when his or her protection is at
stake by the parents or the govt.
(f) Passivity: In this case, if the child is oppressed, then he/she lacks their
own point of view on a situation or their life as a whole.
(g) Invisible: There are many children with unknown parentage making
them highly vulnerable.

Integrated Child Protection Scheme (ICPS)

15
Juvenile Justice (Care & Protection of Children) ACT 2000
10
 The Integrated Child Protection Scheme (ICPS) is a centrally sponsored
scheme aimed at building a protective environment for children in difficult
circumstances as well as other vulnerable children through Government – Civil
Society partnership16.

Vulnerability faced by a child can be categorized into: (a) children in need of care and
protection; and (b) children in conflict with law.

Children in need of care and protection are those who are homeless and do
not have any shelter, or live with any person who threatens to harm them due to
which the child faces abuse and neglect, or if the child is a special child needing
physical and mental treatments, or if the child is not taken care by the parents, or if
he/she is an orphan, a runaway or missing child, or if the child is facing any kind
of abuse, mental or physical, or if the child is a victim of drug abuse, or if the child
is a part of any arm conflicts or faced any natural disasters. Whereas children in
conflict with law are the young children or juveniles who have had legal offences
named under the IPC sections. Child in contact with law is categorized by ICPS as
the third division. These children are generally the victims of any crime or witness
of the criminal offences.

ICPS states that vulnerable children also refers to those categories in

which: "children belong to potentially vulnerable families, children of socially
excluded groups like that of the migrants, SC/ST/OBC families, children infected
with HIV infection or AIDS, parentless children, child drug abusers, child beggars,
trafficked children, sexually abused children, or children of the prisoners, street
workers."

As per the definition by UNICEF17, a vulnerable child is the one has faced
any kind of abuse, exploitation or negligence. It also outlines the following groups
of children as vulnerable as in line with the ICDS with addition of some other
groups like Children whose birth has not been registered, child labors, children
who get engaged in early marriage, children involved in sexual abuse, and Female
children facing any mutilation to their genital parts.

16
https:// www.wcd.nic.in site visited on 25.10.2014
17
https://www.unicef.orgsite visited on 13.03.16
11
 These groups have been elaborately discussed below:

Issues relating to the children

A child become vulnerable due to the facts discussed above and a society
plays a greater role in this shift. The socio-cultural atmosphere of a place along
with the political and religious conditions decides the fate of a child and to
what extent they are vulnerable to various traumas and undesirable situations. A
child is considered to be at high risk of exploitation, if she/he is born into such a
discriminatory group. It is not just the society but the government also plays a
crucial role in this through failure of the programs or low level implementation of
laws for children.

Causes of Juvenile Delinquency

Some of the common causes of the juvenile delinquency are : poverty, anti-social
peer groups, abusive parents, easy availability of fire arms, single parent child,
drug abuse, nuclear family, child sexual abuse, family violence and media role18.

Juvenile delinquency deals with the repeated crime that is performed by the
juvenile. Many studies have exhibited various causes for this delinquency, one
of them being the varying behavioral patterns among the juveniles. The behavioral
patterns develop in the early childhood, and at times, it is difficult to identify. Few
of these causes have been listed below:

1. Adolescence Instability: The change in the behavioral pattern of a juvenile

can be at biological, psychological and sociological levels. The
adolescence age groups demand more freedom and independence to take
their own decisions. . This can at times, if not looked upon, might lead to
anti – social behavior that goes along with the biological change that
happens in their body, and psychological changes as well.

2. Disintegration of Family System: The juveniles or children who come

from disturbed families or else nuclear family set up often face laxity in
parental control. This can be a major cause for increase in juvenile
delinquency.
18
http://waukeshacriminalattorneys.com site visited on 15.07.19
12
 3. Economic condition and Poverty: Many poor families are trapped in the
viscous circle of poverty due to which the parents are not able to fulfill the
needs of their children, which at times, might be a factor leading to
increased crime rates among the juveniles to opt for stealing money from
their parents or others, and slowly resulting in large scale theft.
Migration: Migration of families from the rural to urban areas in search of
better facilities and source of income often makes the juveniles vulnerable
to fall in trap of some anti-socials. They might get involved in various
such anti- social works that would fetch them money, such as theft, drug
smuggling, prostitution, and so on.

4. Sex Indulgence: Usually when a child is young and have faced any sort of
physical abuse, this might lead to a repulsive behavior in them. In the other
way round, when reaching the age of adolescent, the child may want to
explore more about physical or sex variance leading to crimes of rape or
molestation19.

5. Modern Life Style: Due to the fast changing society, children or

adolescents often face difficulty to cope up to the financial standards of
their peers, thus they face cultural and economic conflicts.

REVIEW OF LITERATURE

Yogesh Atal(2009).India along with the performance of and problems in this

system .The inter relationship of police ,people and criminal justice administration
was highlighted. A critical analysis of juvenile justice system was done by
S.Muthusammy (1999b) studied variation in police discretion in the United
Kingdom and in India.

Ved Kumari(2004).The number of participants from the poineer status in the

field of juvenile justice namely T.N, Bengal and Maharashtra or their statement did
not reflect the long history and experience of their status in the field, lawyer’s
analysis of the Bill despite of high percentage of advocates among the debaters.

Aravind Ganesan(1996).juvenile delinquency law was characterised by the

feature that they prescribe many acts which are regarded as non- criminal if
19
S. S. Srivastava, Indian Penal Code along with General Principles (Central Law Agency, India, 2007).
13
included by elder person. The extension of the concept of juvenile delinquency to
wider limit has draw adverse criticism on the ground that it is neither necessary nor
desirable.

The Indian journal(2002).The book strongly urges for the urgent view of the
existing juvenile justice act and the drafting of a new law to prevent further
harassment and exploitation of children. This book brings together of brief yet
comprehensive, collection of facts , information as well as critical analysis of
important aspects concerning the juvenile justice system.

Marvin,D.kohrn , Jodi Lane(2005). Sumar Kekar, the juvenile justice system in

India system in India envisages an infrasture in which the legal system has
jurisdiction over two classes of children below 18years of age those who require
protective care from the state.

Scatt H .Deckar, Nerea Marteache(2016).The bill was passed into law and will
be enforceable starting from January 15,2016.Time will tell if the punitive nature
of This legislation will affect how the public, police, and the judiciary perceive
juveniles justice system for juvenile in conflict with law.

James vadackumchery(1996).The police role and mission and criminal justice

system, victim justice system whether it is juvenile system justice gender justice
or adult justice requires well qualified services of thepolice.According to see
154 of CRPC 1973 the police is only agency empowered to investigate all
cognizable orders.

Mayton A.Hartjen(1996).The juvenile justice system found in any country both

reflects and help to shape the nature of the delinquency problem that country
exhibits law and system of justice specifically pertaining to juvenile are extremely
diverse throughout the world ranging from virtually none to highly complex.

Aravind Ganesan ,Human rights(1996).The problem f juvenile justice is no

doubt one of tragic human interest so much so in fact that it is not only confined to
this country alone but gets across national UN standard minimum rules for the
administration of juvenile justice parliaments seems to be have experienced its
power.

14
 George Miller(2010).Analysis of each decision point is needed so, that targeted
policy and programmatic changes can be implemented. To ensure that strategies
for reducing racial and ethnic disparities based on evidence rather than
perceptions, at each juvenile justice decision point.

James.w. Burfeind, Dawn Jeghem Bartush(2006).The company was directed to

conduct an analysis of juvenile crime and the working of the juvenile justice
system and then to make recommendations based on the analysis.

James.c.Howell, Mark.w.lipsey, John.J.wilson(2014).Meta analysis of research

and the effects of interventions programs for juvenile offenders 2 dozens of meta
analysis have been conducted on evaluation of the effect of programs on
mecidirism of juvenile offenders. Almost all of these however had a limited scope.

Jane.L.king, (1980).Improve the juvenile justice system to the very least

remove young people from the adult confinement facilities their concern with the
incarceration of children provided the stimulus for this repeat sponsored by the
office of juvenile justice and delinquency to the federal juvenile justice and
delinquency.

Oxford university press(2010).Transforming juvenile system justice reform

details and institutional realities examines the ties and competing(Knowles et al.
2018) interest of an early juvenile court and reform school. Historical analysis of
newspaper articles and count down is used to examine the creation of the juvenile
justice system.

Preston Elord.R.Scott Ryder (2013).Discrimination in the handling of juvenile

offenders by socio control agencies. Race effects in juvenile justice today clearly
represent crime and delinquency. Race effects in juvenile justice decision making
findings of a state wide analysis.

Karim Jemali(2010).Analysis of state legislation and current practice indicates

that juvenile justice totally clearly represents a mix of punitive and rehabilitate
approaches and the state very dramatically in the extend to which they towards.

Eve whalter maurer, Timothy.Akers(2004).The utility of epidemiological and

public health principles and approaches in context of the juvenile justice system
15
has not been well studied. To being addressing these transfer to adult system. The
intention of this analysis waste examine the social complexities of juvenile
violence.

Charles Scott (2012).Although adult trials sought to maintain procedural

protection of defendants the early American juvenile court system authorised the
judge to determine how to protect the youth before the court. The analysis of the
in adequencies of the juvenile justice system in the case of juvenile system.

Charles.p.smith(1980).Indirect cost excluding juvenile justice system

processing costs were estimated in the household level. The outcome effectiveness
of juvenile justice system processed was subsequently assessed beginning with the
juvenile justice system as a whole a focus on deterrence and then a separate
analysis of each process area.

Michael adorjan, wing hong chui(2014).Framework understandings how

juvenile delinquency and crimes conceived by the key agents and others key
players in the juvenile justice system and how discourses and policies were
formulated accordingly. This analysis also marks the beginning other formulation
of a new of a set of new research.

RATIONALE OF THE STUDY

- Children need protective for better growth and development in form of

upgraded policies and acts, and responsible citizens.

- Need to spot the limitations in different child protection institutions, the

formulated policies, and programs along with their implementation.

- Existing programs and schemes are marked by limitations

- Lack of prevention policies

- Policies needs to be developed for strengthening and empowering the poor

families in order to cope up with the economic and social hardships
- Raising awareness among the community regarding the rights of the children,
and the different laws to protect them from such vulnerable situations.

16
OBJECTIVES OF THE RESEARCH

1. To analyze the present status of juvenile justice system in India as

compared to other countries.
2. To analyze the provisions of legal support to children regarding care
need protection and justice.
3. To find the reasons for the slow process of implementation of JJS in India
and explore the reasons for resistance to change.
4. To identify the gap in the implementation of JJS.
5. To suggest the reasons for improving the JJS and give suggestions for
effective enforcement of the act.

Problem of aggregation and disaggregation: Juvenile research would include

details of race effects when information is demanded on national and state level.

Multiple decision points: The study focuses on the JJ system through multiple
processing steps.

Quantitative vs. Qualitative approaches: Qualitative strategies, i.e. both field

and observational studies will be included in the study design.

Police and correctional processing: The research also focuses on juvenile

courts that also consider police-juvenile encounters as well as the correctional
process. Multivariate models and indirect effects: The research aims at evaluating
data relating to youths and juveniles taking into account direct and indirect effects.
Organizational characteristics: The organizational structure is also included in the
research perspective where decisions are taken, with respect to environmental
influences of which the children are part of.

Identification of minority groups: Research also attempts to focus on minorities

- communities.

Background of the Family: The family characteristics of minor youths are also
included in the research.

The study was conducted at the first place due to the increasing rate of crime
among the juveniles in Khammam. There has been many government
programmes; however, not much changes have been marked in the rate of crimes.
17
 The above stated research objectives will be well discussed in this thesis in a
comprehensive manner in the following Chapters, which will critically examine
the JJ system of India, the lacunas and the future scope of improvement in the
system of law.
INDIAN JUVENILE JUSTICE SYSTEM HISTORICAL BACKGROUND

The first legislation concerning juveniles was the Apprentice Act, 1850 which
provided that children in the age group of 10- 18 years convicted by courts to be
provided with some vocational training which might help in their rehabilitation
and reformation. It was followed by Reformatory Schools Act, 1897. The Indian
Jail Committee (1919-1920) brought forth the vital need for square trial and
treatment of young offenders. Its recommendations prompted the enactment of the
Children Act in Madras in 1920. This was followed by Bengal and Bombay Acts
in 1922 and 1924 respectively. The three pioneer statutes (i.e. Acts concerning
Madras, Bengal and Bombay) were extensively amended between 1948 and 1959.

Thereafter, the Central enactment, The Children Act, 1960 was passed to cater
to the needs of the Union Territories. To remove some inherent lacunas in the
above mentioned Act, The Children (Amendment) Act was passed in 1978. But the
need of a uniform legislation regarding juvenile justice for the whole country had
been expressed in forums, including Parliament but it could not be enacted on the
ground that the subject matter of such a legislation fell in the State List of the
Indian Constitution. To bring the operations of the juvenile justice system in the
country in conformity with the United Nations Standard Minimum Rules for the
Administration of Juvenile Justice (Beijing Rules, 1985), Parliament seems to have
exercised its power under Article 253 of the Constitution read with Entry 14 of the
Union List to make laws for the whole of India to fulfill International obligations.
On 22nd August, 1986, the Juvenile Justice Bill, 1986 was introduced in the Lok
Sabha.

Its objects and scope were straight and clear that a review of the working of the
existing Children Acts would indicate that much greater attention is required to be
given to children who are found in situations of social ill-treatment, destitution or
neglect. The justice system available for adults was not considered appropriate to
be applied to juveniles. It was felt that a uniform juvenile justice system should be
18
 adopted which could provide for adequate provisions in the changing social,
cultural and economic scenario of the country.

The provisions contained in the Juvenile Justice Act, 1986 replaced the
corresponding laws on the subject such as Children Act, 1960 and other State
enactments on the subject.

As per The Juvenile Justice Act, 1986, the age for a female to be treated as
juvenile was 18 years and that of a male was 16 years. Also, apart from the need
for a uniform Act regarding children, the Juvenile Justice Act, 1986 was a result
of Sheela Barse v. Union of India, 1986 (2) Scale 1.

Though, The Juvenile Justice Act, 1986 came into existence but still there
existed loopholes and lacunas and as expected the Act of 1986 could not pass the
test of time and had to make way for a new Act that is The Juvenile Justice (Care
and Protection of Children) Act, 2000. Under this Act the age was made uniform
for both Male and Female. This Act provided for a special approach towards the
prevention and treatment of juvenile delinquency and provided a framework for
the protection, treatment and rehabilitation of children in the purview of the
juvenile justice system. This law was brought in compliance to the 1989 United
Nations Convention on the Rights of the Child (UNCRC), repealing the earlier
Juvenile Justice Act of 1986 after India signed and ratified the UNCRC in 1992.

Since, there were few grey areas where this new Act was silent and not
expressive in dealing with certain issues most importantly determining the age of
a juvenile offender, the landmark judgment of the Hon'ble Supreme Court of
India by a Constitutional Bench in the case titled as Partap Singh v. State of
Jharkhand, 2005(3) SCC 551. was pronounced addressing this issue in detail and
held that "reckoning date for the determination of the age of the juvenile is the
date of an offence and not the date when he is produced before the authority or in
the Court". Thus, in light of the above decision by the Hon'ble Apex Court, the law
pertaining this issue was amended20.

The Juvenile Justice (Care and Protection of Children) Amendment Act, 2006
came into force on 22nd August 2006. This amendment provided a hope to those

20
https://www.lawfinderlive.com/Articles-1/Article28.htm
19
juveniles who were more than 16 years of age when the alleged crime had taken
place and the old Act i.e. The Juvenile Justice Act, 1986 was in operation. When,
The Juvenile Justice (Care and Protection of Children) Act, 2000 came, the age
was increased to 18 years from 16 years pending trial. Therefore, this anomaly was
removed by way of insertion of a special explanation in Section 20 of the Juvenile
Justice (Care and Protection of Children) Amendment Act, 2006. However, this
provision of law happened to be misused by juveniles in their favour and the
country witnessed nation wide heinous crimes committed by juveniles. The
offenders in a way understood the shield provided by the amended Act.

SIGNIFICANCE OF STUDY

CONSTITUTIONAL MANDATE

There are many articles presented in the Constitution that highlights the
needs and rights of all children irrespective of their race, gender, religion, class,
caste, and so on. These rights have been categorized under Fundamental
Rights and DPSP, which have been stated below in a detailed manner.

Fundamental Rights

Seven fundamental rights were originally provided by the constitution – the

right to equality, right to freedom, right against exploitation, right to freedom of
religion, cultural and educational rights, right to property and right to
constitutional remedies24.

These rights are fundamental in nature and justifiable.

Article 14- According to this Article, everyone is equal before law, and
have the right to equal protection of laws within the territory of India.
Article 15- The Article bars any form of discrimination against the Indian citizen.
With reference to children and women, special provisions can be made for them
by the States and Union.

Article 21- Right to personal liberty and right, except for the procedures
established by law.

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 Article 21 A- The Articles highlights the provision for free and compulsory
education for every child who is within the age group of 6-14 years.

Article 23- The Article prohibits the act of human trafficking (including women
and children), beggary as well as all forms of forced labor.

Article 24- As per the Article guidelines, all children below the age of 14 years are
barred from working in any hazardous sectors, such as factory or mines.

The 86th Constitutional Amendment Act was passed on 13th Dec, 2002, which
declared education as a fundamental right for every child below 14 years.

Directive Principles

The Directive Principles constitute a very comprehensive, economic,

social and political programme for a modern and welfare of people by providing
them basic facilities like food, shelter and clothing21.

Articles 39, 45, 47, and 243G States about the DPSP Policy. Article 39 (e) and (f)
states that policies formulated by the State aims to and that the youths are
protected against exploitation and any sort of moral and material abandonment.

Article 45- The Article states provision of early childhood care and compulsory
education up to the age of 6 years.

Article 47- As per the Article, the Govt. shall raise the nutritional level of the
people along with their standard of living.
Article 243G, Schedule 11 calls for institutionalization of child care and
entrust of Women and Child Development programmes to Panchayat (Item 25 of
Schedule 11),
which deals with education (item 17), family welfare (item 25), health and clean
sanitation (item 23) and others.

VARIOUS SOCIAL LEGISLATIONS FOR THE PROTECTION

AND DEVELOPMENT OF CHILDREN

Children have the right to be protected from all vulnerable and exploitative

21
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 situations. But this is possible only if we make our self of the real problem and the
risks that the children face and of the remedies that are available in law and the
policy to change the situation in the best interest of the children. A child may need
legal help and protection. Resisting legal action when a child needs it the most is a
common mistake all of us tend to make22.

Various Schemes and Programmes:

 Integrated child development Scheme (ICDS),

 Rajiv Gandhi National Creche Scheme,

 Nutrition Component of Prime Minister Gramodya Yojana,

 Nutrition Programme for Adolescent Girls,

 Reproductive and Child Health Programme,

 Pulse Polio Immunization Programme,

 Sarva Shiksha Abhiyan,

 National Programme for education of girls at elementary level,

 Kasturba Gandhi Balika Vidyalaya,

 Mid-day meal,

 Shishu greha,

 Juvenile justice programme,

 Scheme for working children,

 Grant-in-aid scheme for voluntary organisations,

 an Integrated Programme for Street Children – Childline,

 The National Rural Health Mission (2005-12),

 National Child Labour Projects (NCLP),

22
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 and Integrated Child Protection Scheme

(ICPS).

LAWS AND POLICY MAKING RELATED TO CHILD RIGHTS

1. The United Nation’s Convention on the Rights of the Child (UNCRC) –

(November, 1989): UNCRC is the legal binding international agreement setting out the
political, civil, social, economic and cultural rights of every child regardless of their race,
religion or abilities23. It has been the highest ratified document and India ratified the
same on 11th December, 1992 that emphasized on social reintegration of child
victims. The document highlights the importance of child rights and right of every
child to develop, be protected, participate and survive.

2. Geneva Declaration of the Rights of the Child, 1924: This document was
ratified by the League of Nations after the World War II. The Declaration of the
Childs Rights sometimes also known as Geneva Declaration of the child is an
International Document promoting child rights drafted by Eglantyne Jebb and adopted by
the League of Nations in 1924 and adopted in an extended form by United Nations in
195924.

3. United Nations International Children's Emergency Fund (1946): It was

renamed as the United Nations Children's Fund (1953) or UNICEF. The United
Nations International Children’s Emergency Fund was created by the United Nations
General Assembly on 11th Dec. 1946, to provide emergency health care and food to
children in countries that had been devastated by World War II25.

Universal Declaration of Human Rights: It was adopted by UN that recognized the

right to protection of every child. The Universal Declaration of Human Rights
(Universal Declaration) is an International Document that states basic rights and
fundamental freedoms to which all human beings are entitled26.

4. Declaration on the Rights of the Child, UN: It was the first International
document to do so, but it was not a legally binding document rather a set of
guidelines to be followed by the member countries. It was during 1989, when the
UNCRC was adopted by UN Assembly, a legally binding document. The
23
UNCRC – 30th November 1989
24
Declaration of the Rights of Child 1924
25
UNICEF 11Dec.1946
26
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23
 document dealt with four major thematic areas of child rights, i.e. Right to life,
development, protection, and participation, stated under 54 Articles, which came
into force on 2nd Sept, 1990.

5. Document of Govt. of Poland: The Poland Govt. submitted a document to its

Human Rights Commission in 1978. This convention was ratified by 192 countries
and India ratified it in 1992.The Polish initiative on Feb. 1978 – Poland presented
the idea of a United Nations Convention on Child rights. The Bill consists of 19
articles of which 10 are legislative and 9 procedural. In contrast to the prior
Geneva Declaration, this Convention is supposed to be binding for states27.

Convention Overview

Preamble: It recognizes family as the best place for a child to grow, states the
importance of protecting the Rights of a child, etc.

Article 1: An individual below the age of 18 years is considered a child.

Article 2: The guidelines and rights mentioned in the convention are applicable to
every child irrespective of their caste, creed, and religion, and color, place of birth,
political opinions, and race.

Article 3: The signatory countries should act in every possible and best interest of
the child.

Article 4: The State must roll out programs and schemes for ensuring child rights.

Article 5: The rights of the family members or responsible adults related to the child needs
to be kept in mind with respect to their local customs.

Article 6: Right to life is ensured for every child.

Article 7 and 8: It ensures right of every child to obtain birth registration and
nationality of the country he/she is born in, and it is the right of a child to preserve
his or her identity.
Article 9: No child can be separated from his or her parents against their consent.
As the legal right, the child can be in contact with his/her parent as per their best
interest.
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Article 10: A child along with his or her parents can leave or enter any state.
However, if the child leaves in a different state, he or she can be in contact with
either of the parents, which will be in their best of interest.

Article 11: The state shall prevent child trafficking and issues relating to it.

Articles 12 and 13: Based on the age of a child, he/she has the right to speech and
expression. Thus, the child has every right present self in judicial proceedings,
directly or indirectly.

Article 14: Right to freedom of thought, religion and conscience is bestowed upon
every child of the State as a fundamental right.

Article 15: Every child has right to freedom of association under legal
circumstances.

Article 16: The right to privacy is guaranteed to every child along with their
protection under the law.

Article 17: When there is any information relating to the child’s well-being, the
child has every right to get a reach to this information.

Article 18: The state assists the parents and guardians to uphold the children’s
rights. The parents who are working, their children have every right to access
child-care services.

Article 19: The state shall protect every child in its purview from all acts of
violence and abuse bestowed upon them through development of an appropriate
system.
Article 20: Every child needs protection from all form of abuses, and if they are
parentless, it is the job of the state to protect them by developing alternative care
centers, foster care, and adoption or Kafalah of Islamic law.

Article 21: The process of adoption needs to be recognizes legally by all key
stakeholders or the competent authority. Inter-country adoption might also be
provided in exceptional cases, where there is least scope of care in the child’s
native place or country; however, the interest of the child needs to be safeguarded
by the state.

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Article 22: In case of children who are refugees, and have parents or not, needs to
be recognized by the state along with giving them rights as all other children of the
state. If a child is a refugee and has been separated from her/his parents, then the
state shall take every possible mean for reunion of the child with his or her
parents by taking help from the international bodies.

Article 23: According to this Article, children with special needs (both mental and
physical levels) needs to be ensured the right to life that is enjoyed by any normal
child, which will be ensured by the state. In addition to this, the State shall provide
free educational facilities, special care, health check-ups, and vocational training to
these children aiming at ensuring their integration into the society and uplifting
their financial abilities.

Articles 24 and 25: According to this Article, health services shall be available for
every child as a basic right For attaining the highest degree of health, the state
shall reduce the mortality rates of both mother and child, ensure pre-natal and
post-natal assistance, combat diseases through immunization programmes as well
as malnutrition, and create awareness on practicing good healthy habits. All such
treatments need to be reviewed by the state as confirmed by Article 25.

Article 26: This Article ensures social security and insurance to every child.

Article 27: The parents or guardians needs to ensure the apt standard of living for
every child so that they can develop in an overall basis. In case, the parents do not
have the financial capabilities to support their child, there the state has a major role
to play by assisting their parents or the child directly.

Article 28: Article 28 states right to free and compulsory primary education for
every child that has to be ensured by the state. In addition to this, the state shall
also spread awareness and encourage secondary educational forms, start vocational
trainings, ensure accessibility of higher education and prevent school drop outs.

Article 29: According to this Article, education imparted to a child should aim at
the overall development of the child for leading a responsible life in the society.

Article 30: A child belonging to the minority community has every right to

26
practice his or her own religious affairs, language or tradition.

Article 31: As per the Article, right to play and participate is ensured to every child.

Article 32: The Article bars any form of activity for the children that is mentally
and physically exhaustive or is hazardous place of work. For this, the state has a
crucial role to play by setting up the minimum age of employment in such fields or
sectors, employment conditions and hours with respect to the child.

Article 33: The Article prevents substance abuse of any children as a legal offense.
Article 34: The Article focuses on protection of all children from any form of
sexual abuse, which needs to be ensured by the state by preventing child
prostitution and pornography by stating them as illegal activities.

Articles 35 and 36: This prevents sale of children or their abduction. Article 36
states prevention of all forms of exploitation.

Article 37: Any form of physical abuse or inhuman treatment is prohibited on

children.

Article 38: The state needs to ensure that no children below the age of 15 years
would be recruited to the armed forces during any kind of emergencies or time of
conflicts.

Article 39: The victims of any form of abuse or exploitation should be admitted to
rehabilitation centers by the state.

Article 40: According to this Article, it is the responsibility of the state to ensure
proper care and reintegration of the child who has committed any crime, into
the society. Child-friendly laws need to be made by the state for those children
who are accused of any criminal offenses.

Article 41: Any international or national laws that ensures better safeguard of
the children to be given high priority.

Articles 42-54: These Articles states about the responsibilities of the Committee
on the Rights of the Child.

Committee on the rights of the Child

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 The Committee on the Rights of the Child (CRC) is the body of 18
Independent experts that monitors implementation of the Convention on the Rights
of the Child by its state parties. It also monitors implementation of two optional
protocols to the convention, on involvement of children in armed conflict and on
child prostitution, sale of children and child pornography. On Dec. 19, 2011 the
UN General Assembly approved a third optional protocol on a communications
procedure which will allow individual children to submit complaints regarding
specific violations of their rights under the convention and its first two optional
protocols. The protocol entered into force in 2014, April28.

It is a monitoring body of child right experts who ensures effective

implementation of convention outcomes by the states. Its findings are reported to
the UN General Assembly. The first report was submitted two years after the
ratification, followed by report submission by all states every five years.

On reviewing of the report, the committee presents a list of issues that needs to
be addressed by the states and that particular concerned report needs to be
submitted in the next section. The committee even accepts reports from NGOs
recognized by their respective countries and national human rights commissions.

During general discussion days, different UN bodies, NGOs, human rights

organizations, government bodies, field experts and children take part in this
process. The latest discussion day was held in 2008 that covered rights of children
stated under Articles 28 and 29. India has been an active participant of the
discussion group in 1997 and 2001.

HYPOTHESIS

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 1. The objective of juvenile justice system will be defeated in the absence of proper
judicial support system for children regarding care, need, protection and justice in
India
2. The objective of juvenile justice system will not be achieved if there is no proper
implementation of juvenile justice system in India and reasons for resistance to
change are not explored
3. The objective of juvenile justice system will be defeated if the gap in the
implementation of the juvenile justice system is not identified and thereby
analyzed
4. The objective of juvenile justice system in India will be defeated if the reasons
for the improvement of juvenile justice system are not suggested for its effective
enforcement in India.

Research Design:

The researcher has done a critical analytical study of the Indian Juvenile
System and has done doctrinal and empirical research with the following
methodology emphasising mainly on legal aspects, simultaneously. While
comparing quantitative and qualitative approaches, both the strategies are balanced
and not ignored in any manner while designing the framework.

Population:

The population which is known as the area of study will be Khammam District
of the State of Telangana - the various categories of children who are in need of
care and protection and those children in rift with law – various administering
bodies, institutions, observation homes, NGOs, Child Welfare Committees
(CWCs) etc.

Sample:

Children who are in need of care and protection and those children in rift with
29
law, Organisational Structure / Institutions, Minorities Communities,
Educationists, Legal Experts, NGOs etc.

Sampling Techniques:

The sampling techniques for the proposed work are justified and convenient.
Information has been collected personally using questionnaire having both open
ended and close ended structured questions has been used to collect data.

Data Collection Method:

Aggregation and Disaggregation Problems: The research on processing of

juvenile justice has focused more on the fact effects of the race may be hidden
when information on the basis of state or country is combined.

Points of Multiple Decisions: Research effort has paid more attention to JJ

system in its whole by inspecting multiple stages of processing.

Police and Penal System of Processing: While the research is focused on

juvenile court processing is encouraged continuously, research targets the police-
juvenile encounters and penal processing.

Organisational Characteristics: Research also pays attention to the structure of

the organisation within which decisions of JJ are taken, also the environmental
influences in the communities in which they are involved.

Identification of Minority Groups: Research has also attempted to focus on

minorities communities.

Family History: Research has made an attempt of including information about

the characteristics of family of the minority youth gone through the process of the
system.
30
 Jurisdictional Differences: Research has also focused on the jurisdiction of the
rural and sub urban areas of Khammam District of the State of Telangana.

Data Analysis Tools and Techniques:

The collected data has been systematically arranged and has been analysed
accordingly. Appropriate statistical tools will be used for data analysis. Univariate
and Bivariate data analysis techniques are used to analyse the data. Indirect Effects
and Multivariate Models: Research evaluating data on youth and the process of
juvenile has also employed methods are capable to detect direct, subtle and
indirect effects.

Two sets of data that were primary and secondary were collected to analyse,
independently. Subsequently, the combined method’s research results were
integrated
to synthesize. With the usage of Statistical Package for Social Sciences, and
descriptive statistics for suitable variables, quantitative data analysis took place.

To check whether the data collected was free of errors, it was edited to see its
completeness. A codebook was made, subsequently. Thereafter, the codebook was
tested following which the coding was undertaken for verification. There was a
direct coding of data in the computer. It was fed into the SPSS as it was for open
ended questionnaire, and later on was categorized in terms of quantity.

On the basis of qualitative research paradigm, qualitative data was analysed

using thematic analysis related to the points that emerged from the case studies
and interviews with the functionaries and notable other adults.

Presentation of Responses –

Researcher conducted field work during May, 2021 to October 2021.

31
 Researcher approached external focus group comprising academicians,
counsellors, law students of different institutions Individuals, Researchers,
Governments and Civil Society Organizations and laymen through the
questionnaire. Above mentioned stakeholders provided their valuable comments
on different questions.

The objective of this empirical study is to collect the views of a comprehensive

range of stakeholders on improvements and innovations, both past and probable, in
betterment of the JJS in Khammam District of the State of Telangana.

LIMITATIONS OF THE STUDY

1. The study is limited in the area of Khammam District of the State of Telangana

2. Since an open ended form of Questionnaire was used there may be an element
of bias in it. The researcher has taken outmost care to remove such bias.

3. The results of the study in the area of Khammam District of the State of
Telangana cannot be construed as the basis for any sort of comparisons at State
or National level.

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 CHAPTER - II

HISTORICAL DEVELOPMENT OF JUVENILE JUSTICE LAWS

The Juvenile Justice System is one of the most debated topics in the current condition of
India. The juveniles are participating actively in the crimes which lead eminent persons
to think for amending the laws regarding the Juvenile Justice Act. The current problem
India is facing that, the law is insufficient for giving punishment to the Juvenile,
according to the crime committed. But the development of this act is not new in our
society. The process of Juvenile Justice System was started in the time of British Period.
The Juvenile Justice System was the direct consequence of the reforms and the
developments in the Western Ideas.

History:

Till the 20th Century, a detailed knowledge on the difference of justice provided to
an adult or a child was less known. Previously, age was not considered as a factor for
awarding punishment, because of which death penalty was also applicable to the
juveniles, as they were treated as adults.

Over the centuries, things have changed and the term ‘criminal’ which was
previously used for juveniles or children in conflict with law was replaced with a more
appropriate terminology ’delinquent child’. This led to the development of the first
juvenile court that was based on the philosophy of “parens patriae”. This philosophy
stated that any such criminal behavior in case of the juvenile or the child was due to the
absence of parental care and control over the child. This bought a change in the way of
treating the juveniles.

However, the philosophy failed to find solutions to all legal issues relating to the
juveniles or children, which was later addressed by the U.S. Supreme Court, during
1960. The US court mandated all its states to have a juvenile or children’s code that
offers procedural rules and guidelines for dealing with juveniles or children brought
under the JJ system.
Such instance can be drawn from a case involving a juvenile named Gerald Gault29

29
In re Gault, 387 U.S. 1, 87 S. Ct. 1248 (1967)

33
case changed Juvenile law in US in 1967 a land mark U.S. Supreme Court decision gave
juveniles accused of crimes the same due process rights as adults. The case involved
Jerry Gault, who at 14 was given a 7 year sentence for a prank phone call. U.S Supreme
Court established the constitutional right to legal counsel for children facing delinquency
proceedings., in which the court of US stated that a juvenile has every right to appeal,
counsel and confront the witness like that of an adult, along with the right of privilege
against self–incrimination, which brought about a change in the attitude of the judicial
system, which previously did not consider these rights.

This decision laid the foundation stone for the creation of separate judicial systems
for the adults and juveniles in our country. This can be proved from the fact that
juveniles or children offenders are not sentenced to imprisonment or send to jail, they are
rather subjected to disposition and send to correction homes or children homes. They are
also not punished rather the focus is given on their overall development and
rehabilitation.

Delinquency and Detention

‘Juvenile offending’ or ‘juvenile delinquency’ in the US focused on juvenile

rehabilitation, and it has also highlighted the role of state in acting in the best interest of
the juvenile/child. Research in this area basically focuses on the social and behavioral
front in a broader sense as compared to legalities.

There are many reasons of delinquency, such as poverty, narcotics abuse,

alcoholism, teen pregnancy, suicidal tendency and truancy that makes it complex to deal
with. It has also been found that the rate of detention is higher in case of juvenile who
belong to any minority groups. However, it is important to address the above stated
issues in order to prevent juvenile delinquency. In addition to this, the key
stakeholders who are responsible for addressing the issues need to be identified along
with the approach they follow.

Juveniles have been reported to use arms and ammunitions at many cases. This
has been stated in the report by the U.S. Surgeon General which stated that one in 10
children suffered from one kind of mental illness in the US states, which added an
additional economic burden on the state (approximately $12 billion a year) in treating
34
them.
All the above-mentioned issues are only addressed when a child is detained. Thus,
detention has turned out to be a major function of the JJ system; however, this is not the
last resort.

As per the previous studies, around 600,000 minors face detention in US, while
awaiting legal course of action (Building Blocks for Youth, National Council on Crime
and Delinquency Report, 2003; National Juvenile Detention Association and Youth Law
Center, 1998). Detention did not prove to be equal in terms of granting justice, as it was
found that during the 19th Century, with increase in number of detention juveniles, four
of five were youths of color (Annie E. Casey Foundation, 2002), with most of the youths
within the age group of 15 years or so.

Of all these detained youths, nearly 70% are detained for non-violent activities
(National Center for Juvenile Justice, 1999).

Reports from National Juvenile Detention Association and Youth Law Center (1998)
stated that overcrowding in the detention centre led to increased suicidal cases and
mental outburst in the juveniles. It was also found that the use of narcotic drugs or
alcohol was high in detained youths as compared to the normal youths who have not
faced any detention, which was reported to be three times higher in the mentioned
year of research (National Survey on Drug Use and Health, 2004).

The price for maintaining one detention bed is around 1.25-1.5 million USD that is
levied on the taxpayers (National Juvenile Detention Association, 2003). Even after such
a huge monetary investment, many of these detention centers do not offer proper
facilities to the children, with minimum rehabilitation efforts.

Alternatives to Detention

Annie E. Casey Foundation (AECF)30 deals with finding out alternatives for
detention of youths through their Juvenile Detention Alternatives Initiative (JDAI). The
initiative aims at minimizing detention and promoting secure detention. For children
30
Annie E. Casey Foundation (AECF) founded in 1948 is devoted to developing a brighter future for
millions of children. Foundation is focused on improving the well being of American Children. The
foundation’s goals are to build better futures for disadvantaged children, and their families in the U.S.
35
who are risks to self or the society are kept in detention for further rehabilitation,
counseling and care; however, the foundation deters using detention as a tool for
inappropriate detention.
For example, considering the case of 8 years old child who threatened another
peer of his with a knife, was considered for detention by the children court judge. In such
cases, is detention the only option where children have a violent streak, or it has got
alternatives? What about the children with no parents or home? In such case, the
detention is clearly inappropriate.

Detention Reforms

Juvenile Detention Alternatives Initiative (JDAI) – Under Annie E. Casey

Foundation this begun as a pilot project to reduce reliance on local confinement of court
involved youth, the JDAI change model is now operating in 300 counties and
dramatically reducing detention facility population31. JDAI aims at safe reduction of
reliance on secure detention. The detention reforms are believed to improve the JJ
System along with its components.

Following are the objectives of JDAI:

• To prevent inappropriate secure detention;

• In case of pending adjudication, JDAI aims at minimizing re-
arrest of the juvenile as well as his/her failure–to–appear rates;
• To ensure better conditions of living of the juvenile in detention;
• To direct funding activities in order to manage the reforms
brought about in the detention centre; and
• To prevent any cases of ethnic or racial discrimination.

In order to attain the above-mentioned goals, JDAI has adopted various strategies as
follows:
The first strategy is based on the collaborative approach of the JJ Board, government
departments dealing with child rights, and voluntary organizations, who are considered
to be the key stakeholders. Policy makers need to undertake joint efforts for effective
implementation of the laws and policies. In cases, where there is turf between the
members to reach a consensual decision, in such case, the court has al powers to bring
31
https://www.aecf.org visited on 17.10.18
36
them together to work collaboratively in best interest of the child or juvenile.
Secondly, the data collection needs to be accurate so that an apt diagnosis of the
issues relating to the JJ System can be dealt with. The system of collection needs to be
made uniform.
Thirdly, replacement of subjective decision with that of objective admissions criteria
is focused on, in which the decision of sending the child to the secure detention is made.
Many governments have come up with risk assessment instruments that aim at
evaluating the need of a child or juvenile who is kept at the detention centre. , for
example, as used by New Mexico.
It calls for opting to non-secure alternatives for detention. To implement this
strategy, the community needs to take an active role in creating such alternatives In order
to share the burden that is on the system.
There shall be reforms in case proceedings in order to expedite the whole process of
justice delivery. This step will lead to reduction in the days of stay in the juvenile
custody, and make the non–secure program available. In order to expedite the process, a
joint collaboration is needed between the probation officer, prosecutor and the defense
counsel. These above-mentioned parties shall prioritize adjudication as compared to
listing out the number of successful prosecutions. In the current jurisdiction by the
author, a simple reform was introduced in which the prosecutor had to send a plea at the
same time period when the discovery was sent to the public offender. This reduced the
proceeding timing to 2 weeks from the date of filling.
In case of special detention cases, where the juveniles are kept in detention for
violation of probation rules (possession of drugs, curfew violation, truancy, etc.), any
writs or warrants, such cases must be re-evaluated in order to reduce their numbers in the
detention centers. Here, the key stakeholder is the juvenile court which has the sole
decision making power. Probation violations are committed mainly by the juveniles who
are below 15 years. In place of secure detention, the JDAI strategy demands increased
electronic and physical supervision, house arrest, or placement opportunities for the
youths who have attained the age of employment.
The JDAI strategies also focus on eliminating racial or ethnic differences while
providing justice and eliminating judicial bias. According to the author, most of the
children or juvenile who are in the detention center are juvenile of color. The jurisdiction
consisted of 45% Hispanic individuals, and 2% African Americans. The reasons of

37
detention of these children need to be found out along with the reasons of the delinquent
acts.
The guidelines also call for improving the conditions of the juveniles and the
detention center. For this, there has to be a rigorous protocol for routine inspection of the
center. Not taking care of the juveniles in the detention center might lead to development
of tremendous liability on the community or the country. The case was different till
1975, when children were treated equal to the adults and were jailed for committing any
crime, which is now an unacceptable practice in New Mexico.
When juveniles are in detention in the center, without any proper programs the sole
purpose of rehabilitation fails. Again releasing these juveniles without any skill
development or rehabilitation does not make any difference to the society or to them.
Thus, the nature of problem faced by the juvenile/child needs to be understood. In
response to this, the American Correctional Association (ACA) developed national
standards for developing facilities for such juveniles, which includes medical,
educational and vocational facilities.
During the 18th Century, children or juvenile in conflict with law were treated as
adults during legal proceedings against them. They were jailed along with the adults and
granted same punishment, and had no rights to appeal against the decision for getting
bail or right to public trial. This calls for a comparative study taking into consideration
the reforms carried out by other countries.

Historical Background of JJ System- Indian Perspective

To effectively understand the JJ system, a highlight on the historical aspect is (d)

Established a Supreme Court at Calcutta32 necessary, which spans across five periods, i.e.
prior to 1773, 1773-1850, 1850-1918, 1919-1950, and1950-Post.

The Regulating Act, 1773 made the following changes –

(a) Changed the Constitution of the Company in England.
(b) Recognized the Government of Calcutta.
(c) Brought the Presidencies of Bombay and Madras to some extent under
the control of the Governor-General of Bengal.

32
The Regulating Act 1773 –
38
 The Regulating Act was granted by the Crown to the East India Company. This was
landmark legislation, and according to this, the company was granted the power of
making laws as well as implementing them, though under a restricted level. The basic
principles underlying the Juvenile Justice System of other countries had also been taken
into account while formulating the law relating to JJ system in India.

The Jail Reform Committee was appointed to suggest the measure for prison reforms
was headed by Sir Alexander Cardew. The committee visited prisons in Burma,
Japan, Phillipines, Hong Kong and Britain besides the Indian Jails and came to the
conclusion that prisons should not only have deterring influence but they should also
have a reforming effect on inmates. The Committee under lined the need for reformative
approach to prison inmates and discourage the use of corporal punishment in jails. It
recommended utilization of prison inmates in productive work so as to bring about their
reformation. The committee also emphasized the need for an intensive after care
programme for the released prisoners for their rehabilitation33.

The Committee’s Report (1919-1920) can be marked as a landmark change in the

history JJ Act history. The Committee stated that the administration of prison should
take essential steps for the intellectual as well as moral development and rehabilitation of
the juveniles in detention. However, the pace of legal development was not satisfactory
up-to 1950. The Central Children Act, 1960 was an important piece of legislation passed
by the Parliament which served as model legislation for various states.

In Sheela Barse v. Union of India34, the landmark judgment delivered by the

Supreme Court (SC) emphasized on the central act that was needed to ensure socio-
economical and psychological rehabilitation of the juvenile in conflict with law. The SC
questioned the non-enforcement of the Children Acts and ordered the states to bring into
implementation the Children Act. The shortcomings of the Act were amended by the
1978 Amendment Act, which brought about the following changes:

A detailed and better definition was provided for the term 'neglected child' that took
33
The Indian Jail Reform Committee Report 1919-20
34
AIR 1986 S.C. 1175

39
into consideration the cases of the children in which the parents or guardians failed to
take proper care of the child. However, implementation of this Act was difficult in case
of Indian population, as in majority of these cases; the parents belonged to poor
background.
According to the 1960 Act, the competent authorities dealt with juveniles in
delinquency, however, the children were not given importance. Delinquency also might
be due to the negligence of the parents. If this is the case, then the child may be
forwarded to the child welfare board rather than the juvenile court as stated in the
Amendment Act.
A) As per the 1960 Act, the children were kept in observation homes
which were more of an official set up and institutionalized. It did not
provide a child friendly environment for rehabilitation or counseling of the
child.

B) The children's courts was formed under the guidelines of 1960 Act,
however, it only had Magistrates and no other members. However, this
was amended in the 1978 Act, where social workers were appointed as
members of the Board.

C) In India, a drastic change prohibiting imprisonment of children under

any circumstance was brought by the Children Act 1960. The two
competent bodies were introduced, i.e. the children court and child
welfare board, where the former dealt with delinquency and the latter
dealt with neglected children. Thus, the three-tier institution was developed
that included observation home where the children stayed during the
proceedings, children’s home which housed the neglected children, and a
special school that was open for delinquent children.

The states following the provisions mentioned in the 1960 Act also stated similar
provisions for the children with conflict with law and the neglected children. However,
it was in 1985, in the UN General Assembly meeting at Beijing, which laid the
foundation for uniformity of these laws. The Assembly presented the 69threport that
recommended the uniform law, which was later suggested by the SC in the year 1986.

40
 This led to the passing of the JJ Act, 1986, which was brought into force in 1987
which had an uniform characteristics, except for the state of J&K35. This Act prohibited
putting the children in jails along with adults, stated development of a special care and
protection institute for their rehabilitation, disposition alternatives for these children,
reintegration with the families, and so on.

Even after the mention of the mandatory requirements to set up an institution like
this, many states failed to do so with regard to setting up observation homes, children
homes and foster care institutes, after care homes, juvenile courts, and recruiting
juvenile board members for welfare of the children, along with raising the standards of
accommodation, management of the institutes, educational facilities, medical facilities,
or rehabilitation. There were limited policies for developing manpower of JJ System,
with only multiple enactments to come over certain issues arising in functioning of these
systems.

Such legislations have failed to include the High Court principles, thus delaying the
Convention’s ratification on Rights of the Child36. In 1999-2000, many national
consultations were conducted on JJ System that aimed at improving the existing
administration37.

The foundation for the development of a children code Bill, 2000 was laid forward
by the committee’s Chairperson, Justice Krishna Iyer. This was followed by the
introduction of the JJ (Care and Protection of Children) Bill, 2000 in the Lower and
Upper House without mention of the Children’s Code Bill, 2000. The JJ Bill showcased
the benefits for children/juveniles such as setting up of foster care homes, adoption
criteria for homeless or parentless children, setting up of shelter homes, and sponsorships
and counseling for the children in conflict with law as well as his/her parents. The JJ
Act, 2000 recognizes the importance of a family in dealing with the child. However,
because of the inconsistent drafting the benefits have been blemished. The Act aims at
35
The provisions of the Jammu and Kashmir Children Act 1970, in force in Jammu and Kashmir, were
more or less similar in approach to the JJA.
36
National Law School of India University: Current Issues in Juvenile Justice Administration (National
Law School of India University, 1999).
37
National Consultations Meet on the Juvenile Justice System and the Rights of Child, National Institute
of Public Cooperation and Child Development (1999); National Consultations on Juvenile Justice,
National Law School of India University (1999); National Seminar on juvenile Justice, Butterflies (1999);
National Consultations on Juvenile Homes, Prayas Institute for Juvenile Justice (1999)
41
taking care of the children in conflict with law and ensuring their protection and overall
development and rehabilitation.

According to the Act, any individual who is up to the age of 18 years is considered
a child. The age bar was decided for the whole country as 18 years in order to
maintain the uniformity in justice delivery. As discussed earlier even, no child shall be
sent to the jail along with other adult prisoners. The Act also ensured provision of better
infrastructures for the children and juveniles who stayed at the correction home or
juvenile home. These homes aimed at providing effective counseling for rehabilitation
and overall physical and mental development of the child. The Act called for two
competent authorities, i.e. the JJ Board (JJB) that deals with 'juvenile in conflict with
law' and the CWC that aims at taking care of the children and ensuring their protection.
The Act also empowers the authorities to opt for alternative care models, like community
or family, rather than detention of the child in the children or juvenile homes. The very
base of this Act is based on the guidelines provided by the UNCRC, to which India
became a signatory in 1992.

JJ Act to consolidate and amend the law relating to juveniles in conflict with law and
children in need care and protection, by providing for proper care, protection and
treatment by catering to their development needs, and by adopting a child friendly
approach in the adjudication and disposition of matters in the best interest of children
and for their ultimate rehabilitation through various institutions established under this
enactment38. The act was in order to give maximum benefit to the juveniles should be
implemented as a whole. It states co-operation by various agencies active in and
responsible for its proper implementation that is necessary for providing care, protection
and development of all the children. The competent authorities aim at protecting every
child who is in need of care and protection, and various communities and other
institutions and organizations meant to cater to the need of such category of children are
actually and sincerely functioning in sufficient numbers.

There needs to be a strengthened link between the JJS and other welfare services that
is run by the State or voluntary organizations. Juvenile delinquency has been considered

38
The Juvenile Justice (Care &Protection of Children) Act, 2000
42
as a grave failure of the community that could not provide an apt socialization
instrument to the children who are captured in the breakdown of traditional institutions
like family and community under the influence of urbanization.

It is also very pertinent to mention that the juveniles being of tender age are more
likely to be exposed to the world of the criminals and are required to be protected. It
can only be possible by segregation of the juvenile from the hardcore criminals who
are postgraduate in the criminal atmosphere.

The JJ Act, 2000 brought about certain modification. Juvenile Justice Board chaired
by Principal Magistrate along with two members has been constituted with the purpose
to protect interest of the juvenile. In this process, the community participation is also
introduced. Special provisions have been declared for granting of the bail to the juvenile
in order to avoid any hardship to them. The juveniles being of tender age are more
exposed to suffer mental, physical and sexual agony. The practical issues observed while
implementing the JJ Act by the various agencies are required to be sorted out with the
amicable and mutual coordination of voluntary organization and district administration.
Judiciary can also play a role model in its implementation.

The children being the most important assets of the nation their protection must be
the foremost duty of the State. The state has undertaken this responsibility being a
welfare state and this responsibility cannot be shifted to any other organization. It is very
important to mention here that the salient feature of JJ Act, 2000 as already discussed,
makes it crystal clear that the children shall not be penalized and kept in jail.

These provisions are required to be looked into from many angles. First is whether
keeping in view the juvenility of the offender no penal action should be initiated against
him/her or if it would be enough to transform them or if the child should be taken into
detention for proper care in order to change his/her attitude.

The Act but it is required to be implemented in letters and spirit. However, some
changes in the Act are required to be made for benefit of juveniles.

43
 The Sinha Committee in 1968 had recommended: “as an immediate measure, during
the fourth plan period, one Remand Home should be set up in every district with a
minimum capacity of 25 children, two Children’s Homes in each district, one for girls
and one for boys, two certified schools for group of five districts, one for girls and one
for boys in each state.
Increased awareness and training among personnel functioning under the JJS should
be made compulsory. There is a strong need for taking a policy decision in the scheme of
the legislation itself for resorting to institutions as a last option with a minimum period,
if necessary, until some community or family placement works out. The legislation must
clearly prioritize the various orders that may be passed in relation to the children. The
analysis of the implementation process in the pre-JJA period, relating to the JJS in India,
proved its most unsystematic approach. Some of the reasons behind its poor
implementation are not determining the number of children who are in need of such
care and protection. In addition to this, the beneficiaries’ status needs to be protected and
the attitude of the community and the state needs to change for such children or
juveniles.

The provisions regarding providing shelter to the juvenile are still far away from
taking practical shape. It is really incomplete service provided by the government. It has
to be looked into on the ground as per the spirit of the beneficial enactment. A specified
number of juveniles should be kept in the shelter and observation homes etc. But inflow
of the delinquent juvenile in large numbers led to the congestion in the homes which
ultimately result into a pandemonium and acceleration of the juveniles problems.

Apart from it, role of some organizations like police and other NGOs to a certain
extent is commendable but still a lot is required to be done and various schemes are
required to be implemented in more pragmatically. The study stated that at times the
juvenile is apprehended by the police and is taken into the custody without verification
of the age. Such misuse of the powers requires interference of the courts and law
executive agencies.

The community participation also leads to spread of awareness amongst various

strata of the societies. With the passage of time and due to community participations the

44
awareness in comparison to the earlier decades has increased. Introduction of the
training programmes by the government for its agencies involved in implementation of
the Act has really proved fruitful. It has helped them in changing views towards juvenile
offenders.
The spread of awareness among the children or juveniles in the detention center has
resulted in change in their mindset towards life. The case needs to be disposed within 6
months of filling of the charge sheet. According to JJ Rules, 2007 the inquiry needs to be
completed within a time span of four months if the offence committed by the juvenile is
a serious crime. However, the time span is extendable up to two months. But the
present scenario is different, where there are many numbers of cases that are pending
with the court for more than 6 months.

In view of the directions issued by Supreme Court in Sheela Barse's 39 case, the
outcome of the case led to development of a uniform legal JJ System throughout the
country, except for J & K. It is one of the initiators of the process for JJ Act
implementation. Later, J & K also accepted the JJ Act on persuasion of the SC.

Children cannot get a fair deal and necessary protection from the enforcement
agencies in the absence of such knowledge and empathy. Generation of sufficient
knowledge and awareness of the philosophy and legal provisions of the JJS, therefore,
becomes a prime task for individuals and bodies working for children. The Supreme
Court and High Courts have played an important role in interpreting the provisions of
Children Act, 1960, JJ Act of 1986 and 2000 in such a way that has provided maximum
relief to the juveniles of the legislation which were passed for the children’s protection
and care.

The SC’s initiative in implementation of the JJA did not change either the direction
or the pattern of the implementation of the juvenile justice services, though it did
increase its pace in some cases. Orders of the Supreme Court primarily emphasized the
establishment of institutional paraphernalia. At the last the Supreme Court emphasized
on the involvement of the community operations under the JJA. The JJA provides ample
scope for involving voluntary social workers and organizations at various stages and

39
AIR 1986 S.C. 1175
45
bodies related to the JJS. The Supreme Court could have also ensured implementation of
those provisions by asking the voluntary organizations to depute one of their workers
for various activities under the JJA. The voluntary organizations could not have in
addition; the SC could have directed creation of district level committees constituted by
voluntary social workers or organizations to act as watchdogs of the children’s interest.
It would have not only increased community participation but also worked as a measure
of quality control, especially important in the case of children who themselves cannot
raise a voice against deficient services.

The SC has been quite considerate and liberal towards the juveniles. A case dating
back to 1977 scratched the death penalty sentence for any juvenile or person below
the age of 18 years40. Previously, Acts like that of Borstal Acts and Reformatory Schools
Acts entertained death penalty for children along with life imprisonment.41

Segregation of juvenile from adult offender has also been supported and protected by
the judiciary. The controversy as to the relevant date when a child could be held a
juvenile was set at rest by JJ Act, 2000. However, this issue has been raised in many
cases resulting into controversy as is clear from the outcome of decisions in Arnit Dass
vs. State of Bihar42 and Umesh Chandra v. State of Rajasthan43.

In Umesh Chandra's case44, the SC considered the commission of offence date as

date for implementing Children Act. Whereas, in Arnit Dass's case (supra), Bench of SC
also stated regarding the relevant date of appearance. The SC allowed the juvenile to
raise plea of juvenility before the legal proceedings 45. If the SC finds that a juvenile has
been treated as an adult, who was already been convicted, then the court can order to
send the child / juvenile to the detention or juvenile home. The Supreme Court keeping
in view of appellant's age i.e. 28 years refused to send him to approved school for
detention.
In the case of Pratap Singh v. State of Jharkhand and ors46., the SC bench decided on

40
AIR 1977 SC 1822
41
AIR 1965 MP 122; AIR 1937 Nag to 74 (DB) 1968 Crl. L J. 1178, 1961, Mad. L J (Crl.) 705
42
AIR 2000 SC 2264
43
1982 Cri.L.J. 994
44
Supra 14
45
1984 Cri. L.J. 168
46
JT 2005 (2) SC 271
46
the conflicting viewed in the above two mentioned cases. The Bench upheld its earlier
decision as stated during the Umesh Chandra’s case, where the age of the juvenile was
determined as the age that he/she attained on the date of committing the offence.

In the case of Raghubir v. State of Haryana47, the SC held that the accused of an
offence under Section 302 IPC if juvenile is also entitled to benefit of the Children Act.
Similarly, view was expressed in Rohtash's48 case. In Miss Sangita Jain v. S.A.
Dwivedi's49, Bombay HC while dealing with a labor court case has gone a step further
holding that JJ Act, 1986 that bars jurisdiction of all courts, thereby extending the
jurisdiction of Juvenile Courts even to the matters pending before the Labor Court
Tribunals. Similarly, the court widened the scope of the Juvenile Justice Board quashing
the General Court Martial proceeding under Army Act, which led to release of the
Ex.Gnr. Ajit Singh on the ground that he was a juvenile on the date of offense and he
could not be presented before the General Court Martial.

Previous legal interventions have focused on the sensitivity of SC regarding the cases
relating to the juveniles who are convicted. In the case of Sheela Barse and anr.
(I) v. Union of India50, the SC ordered the district judges to appoint CJM or any other
Judicial Magistrate to pay visit to the jails in order to find the number of children below
the age bar of 16 years as well as the charges against them. Based on the report, the SC
ordered trial of such children to be transferred to Juvenile Courts from regular courts
deal with the children and the Central Government should bring a uniform law for the
entire country. JJ Act has imposed special duties on the police by establishing special
juvenile police unit.
Regarding granting bail to juvenile, the SC has shown a very liberal face while
holding that JJ Act, 2000 aims at benefitting the juvenile. As per the Section 12 of the
Act, it is mandatory for a juvenile offender to be released on get bail by the special
juvenile courts dealing with such juveniles or children offenders. The observation was

47
1999 (2) JCC Delhi 311
48
Modi Cabinet approves amendments to Juvenile Justice Act, India,
available at: http://indiatoday.intoday.in/story/juvenile-justice-act-union-cabinet-minor-rape-
december-16- gangrape/1/375857.html (Visited on 13th February, 2019)
49
1996 (5) BomCR 287, 1996 CriLJ 24 The Juvenile Justice (Care and Protection of Children) Bill, 2014,
India, available at: http://www.prsindia.org/billtrack/the-juvenile-justice-care-and-protection-of- children-
bill-2014-3362/ (Visited on 10th December, 2018).
50
F. Zimring and D. S. Tanenhaus, Choosing the Future for American Juvenile Justice (New York
University Press, New York, 2014)
47
given in Rajinder Chandra v. State of Chhattisgarh and Anr. 51 And Pratap Singh v. State
of Jharkhand and Anr52 cases. The court further opined in other case Arvind v. State53,
that gravity of offence cannot be criteria for declining the bail. Regarding final
disposition of juvenile also the court had the very soft approach and allowed the issue of
child status raised before the SC for the first time. The SC held that even if the children
are guilty of serious offence under Section 302 IPC, this should be dealt under the
Act.

The Union Cabinet has decided to amend the JJ Act in order to empower the JJB to
decide the considerate age of the juvenile and whether he/she is above 16 years of age
and is involved in heinous crimes like rape. In such case, the Board can forward the
juvenile to the observation home. This decision was made by the cabinet chaired by the
PM Sh. Narendra Modi, to which the WCD Minister Smt. Maneka Gandhi stated that the
amendment Act would be a deterrent for child offenders and in turn protect the rights of
the victims as well.

The other amendments of JJ Act, 2000, include imposing a better clarity to the
functions of statutory bodies like that of the CWCs and JJBs. The Amendment Act
has also offered statutory status to the Central Adoption Resource Authority (CARA). In
addition to this, many other offences have also been covered by this Act, such as
corporal punishment, bullying, employing child for vending, beggary, or smuggling of
intoxicated products or narcotic drugs. The juveniles within the age group of 16-18
years, who are involved in heinous crimes, shall be treated as adults are trailed in
adult courts as recommended by the JJB. This change in the age bar was brought into
the system after the Dec 16, 2012 gang rape where an involvement of a juvenile was
stated54.

The Juvenile Justice (Care and Protection of Children) Bill, 2014

The Bill was introduced in the Lower House by the WCD Minister, Smt.
51
Appeal (Crl.) 113 of 2002
52
JT 2005 (2)271
53
1999 (2) JCC Delhi 311
54 75
The killers and the victims, available at:
http://edition.cnn.com/2001/WORLD/europe/06/21/bulger.profiles/ Visited on 10th December, 2018
48
Maneka Gandhi on 12th Aug, 2014.

Objectives:
 The Bill is based on recommendations of UNCRC which was
ratified by India on 11th December, 1992. It deals with the
adoption criteria and process, procedural safeguard of the juveniles
and children offenders or victims, pending of juvenile cases,
accountability, and so on.
 Coverage: Any individual who is 18 years or below is considered as
a child, which is in line with the UNCRC guidelines. In the current
Bill, children within the age group of 16-18 years, who are found to
have committed heinous crimes that have a minimum punishment
of 7 years, might be treated as adults.
 General principles: The general principle includes: presumption of
innocence for a juvenile or child, decisions made for the best
interest of a child, institutionalization being the last option for
reformation of the child, and so on.
 JJBs: The Boards to be created for every districts, which shall be
composed of a Magistrate and two social workers, of which one
should be a woman.
 Powers and responsibilities of the JJBs: (i) Offering legal assistance
to the child who is in conflict with law or the victim; (ii) disposing
of cases; (iii) regularly inspecting the adult jails to find out if any
children below the age of 18 years have been locked up for any
offence; and (iv) inspecting residential facilities for these children.
Children’s Court: It is set up under the Commissions for Protection
of Child Rights Act, 2005. It is also referred to as the Special Court
under the Protection of Children from Sexual Offences Act, 2012.
The Court deals with the cases of heinous crimes committed by the
children aged between 16-18 years. In such case, the court can
direct the child to be send to safety place till he/she attains the age
of 21, following which he/she shall be send to the adult jail. . The
Court shall direct the District Child Protection Units (DCPUs) to
conduct periodic visits.
49
  CWCs: As directed by the government, all states shall constitute
CWC(s) in every district aiming at providing care and protection to
the child in need.
 Special Juvenile Police Units (SJPUs) and Child Welfare Police
Officers: All districts will have a SJPU that will include a trained
police officer named as Child Welfare Police Officer, along with
two social workers.
 Adoption: The parents who are interested for adoption must be
in consent with their decision. There is scope for adoption for a
single or divorced parent; however, a single male is not allowed to
adopt a girl child. For adoption, the parents need to be physically,
mentally and financially fit. All regulations need to be framed by
CARA.
 Penalties: If any orphan or abandoned child is not presented within
24 hrs, then the officer is liable to imprisonment up to 6 months
with fine of Rs 10,000 or both. If any child care institute is not
registered, then it can lead to 1 year imprisonment with fine up to
1 lakh or both. If a child is intoxicated by an adult, then it can lead
to 7 years in prison with 1 lakh fine or both.

Keeping in view the various pronouncement of SC and the various HCs, it can be
concluded that the courts have put all its effort to advance the cause of a beneficial
legislation to the juveniles and keeping in view the above discussion it is clear that SC
and HCs have made a appreciable efforts to protect the interest of the juveniles but
still needful is required to be done. And all the points for the further betterment of the
JJS in India are also further discussed and critically analyzed in the following chapters
also giving a purview of the juvenile justice systems adopted by different countries.

HISTORICAL BACKGROUND OF THE JUVENIE JUSTICE SYSTEM IN USA

You being a young person below the age of 18 and face trouble with the law, your
case will be heard in the JJS. But, this has not been the scenario. The idea to have a
separate system for justice for juveniles is old enough to be traced to a hundred years
ago.

50
Origin of the JJ System

The JJS in America aims to punish and rehabilitate adolescents exhibiting criminal
behavior. The JJS intends to interfere in delinquent behavior and take actions for the
prevention of adolescents in indulging in criminal behavior when they grow up. JJS
includes alternative programs for schooling and incarceration. The JJS has affected
adolescents in a greater number which has taken a rise in the graph of growth as school
are not tolerating, enforcing cunning punishments for the students’ activities that seem
are not safe or will affect the environment of safe learning. . JJS in America is
controversial in nature. Few scholars, like Laura Finley, have debated that the system
states children as criminals and does not treat them well. Juvenile delinquency has
certain policies that have arisen because of fear that the adolescents have, and also due to
the government having failed to impart political and social rights to children.
The idea to have a separate legal guideline for juvenile accusations is new when seen
from a historical point of view. Children of 7 years of age who were involved in criminal
activities55, were also were kept in prison with adults.. The idea to reform youth involved
in criminal activities started in the early nineteenth century in the States. The first
juvenile reform house of the States was established in New York in the year 1824.To
establish a house for juvenile wrongdoers, New York took the first attempt, which would
be followed by other states like Maryland.
The emerging research and scientific facts related to development of children in the
eighteenth and nineteenth centuries, supported all the reformers all over the country
mastered the cause of not to punish juvenile wrongdoers like adults, instead, rehabilitate
them.
Crime doers were punished strictly by the Church in the middle Ages, which is the
time when juvenile delinquents were being punished in the similar ways as adults. Back
then, children were not even under the consideration of having special rights and
protections. . The attitude towards juvenile delinquency in the United States was
similar. The arguments went around the dilemma of having a separate legal system for
the punishment of juvenile delinquency. The programs for juvenile delinquency targets
started in nineteenth century. The New York House of Refuge was established in 1825
which was the first ever institution for juvenile delinquency as noted by Barry Krisberg

55
Juvenile Court Act of 1889- The first juvenile court in U.S authorized by the Illinois, it was founded in
1899 in Chicago. The Act gave the court jurisdiction over neglected, dependent and delinquent children
under age 16. The focus of the court was rehabilitation rather than punishment.
51
and James F. Other such programs as described by Finley inclusive of ‘houses of
refuge’, emphasizing on moral rehabilitation; ‘reform schools’ having a widespread
reputation for not treating the children well; ‘child saving organizations’, were social
agencies for charity working to reform poor and delinquent children. .

Cook County in the State of Illinois established the first juvenile court, in the year
1899. All of the states virtually had established juvenile courts within 30 years.

The major difference that lies between juvenile courts and adult courts was that
juvenile courts had a ‘civil’ nature, whereas adult courts had a ‘criminal’ nature. Civil
proceeding was beneficial because the courts had a focus on youth, instead of the alleged
offense, and work towards nurturing the youth. The foundation of juvenile courts was
formed by the legal doctrine of ‘parenspatriae’ which meant that the State was
authorized to decide the benefits of a child as his parents would. It still very much exists
in the JJS and in schools.

The youth in the juvenile system of court weren’t given constitutional legal rights
until the late 1960s.This changed as the U.S. Supreme Court took a decision in In re
Gault, in the year 1967.In such a case the Supreme Court drew a conclusion that,
irrespective of juvenile courts having civil proceedings, the juveniles in relation with
these proceedings lost their liberty. Due to which, the Supreme Court needed to have the
below mentioned constitutional rights for such youth wrongdoers:

1. Right of receiving notice of charges

2. Right of obtaining legal counsel
3. Right of confronting and cross examining
4. Privilege against self-incrimination
5. Right of receiving a transcript of the proceedings
6. Right of having an appellate court review the decision of the lower courts
Followed by the In re Gault, the Juvenile Delinquency Prevention and Control Act
was passed by U.S. Congress in 1968.The Act demanded states for developing plans
framed for addressing and curbing juvenile delinquency in the community for receiving
federal funding.

52
 Following which, Juvenile Justice and Delinquency Prevention Act was passed by
Congress in the year 1974, adding further youth protection in JJS, specifically in the
U.S. The Act and it getting subsequently amended; needed:
1. Youth wrongdoers were supposed to have separation of sight and
sound from adult wrongdoers for preventing any contact in between them.
2. Youth having committed any offence of ‘status’ were not kept in
the facility of either juvenile or adult detention.
3. Youth were not kept in detention in adult jails unless some
requirements were fulfilled.
4. States make plans for reducing the count of minority youth in the JJS.
It led to the creation of JJ and Delinquency Prevention which has
become a part of the U.S. Department of Justice, and the National Institute
for JJ and Delinquency.
Back in 1980s and 1990s, there was a dramatic rise in juvenile crime all over the
nation. For which states across the U.S., inclusive of Maryland enacted laws that need
enforcement of law and the courts to charge youth as adults if they are alleged to have
committed certain violent crimes and weapon offenses.
While the laws on tough crime in the 80s and 90s are still in effect, there has been a
effort that has been renewed in the very first decade of the new century for focusing on
deinstitutionalizing juvenile wrongdoers and addressing their requirements through small
settings bases on facility, or treatment based on community. This renewed rehabilitation
of most difficult youth in the JJS put emphasis on, is in keeping up with a hundred year
old mission and purpose of the modern JJS.

Juvenile Justice System in Maryland

JJS in Maryland originated in early colonization when children were prisoned along
with adults when their crime may have been just being homeless. The role of DJS has its
origin in the nineteenth century when institutions for reforming delinquent youth were
established in Maryland. The State’s adoption of radical policy to separate juvenile
delinquency from adult criminalists took place in the year 1830. An Act to Establish a
House of Refuge for Juvenile Delinquents was passed by the Legislature, which created
an authority for the provision of homes, education, and job training for the children who

53
were in trouble, for the first time56.

The Establishment of First Facility in Maryland for Juveniles: 'House

of Refuge'

This concept was not a physical reality until the year 1850. When the concept did not
progress virtually for 20 odd years, the Managers organized themselves once again
laying the cornerstone of the building on October 27, 1851. The building took a little
longer to be built as there was a problem in organizing funds. But, the Managers by
1854,made efforts of admitting 300 juvenile delinquents as early as in May, or in June,
1855. It commenced to become functional in December, 1855, and had its location on
Frederick Avenue in Baltimore City. It was renamed as ‘Maryland School for Boys’ in
the year 1910. After a year, this was shut down and had its relocation in the site where
Charles H. Hickey Junior School presently remains, near Loch Raven.

Early Facilities:

The years 1850-1882, Maryland constructed four facilities for young individuals,
which were separated under race and gender. All the four schools were later on
organized as training schools and were controlled by a central administration.
Back in 1920s, the Maryland reform schools aimed at educating and reforming boys
who used to beg on streets, or were indulged in criminal activities or the ones those who
were orphans or left there by their family. Presently, youth are not a part of juvenile
detention, anymore, because of their economic status, and also, they are not
differentiated on the basis of color, race or gender. These schools also does not accept
parents to drop their children in the center.
In 1922, these training schools were brought under the State Department of
Education, which was later authorized to the State Department of Public Works in
Maryland in the year 1943.

Independent Agency Evolution:

It is also referred to as the Department of Juvenile Services (DJS), which exists since
1967. At that particular time, it was charged with on-going children’s centers and boy’s

56
Maryland’s legislature passed a law in 1830 – “An Act to Establish a House of Refuge for Juvenile
Delinquents” that created an authority for the state to provide delinquent children with homes, education,
and training for job
54
forestry camps in Maryland. In 1969, the agency was organized by the Department of
Health and Mental Hygiene as Juvenile Services Administration (JSA). The JSA handled
school’s administration, youth detention organizations, forestry camps and probation or
aftercare programs. In 1987, JSA became an independent body.
The DJS has evolved from a system whose primary provision is taking care and
providing facilities to a delivery system of comprehended service, focusing on treatment
in the community and secured programs and facilities. It has a provision of a vast range
of programs and services framed for addressing the requirements of the widespread
diversified population.

55
Table 4.1

56
Table 4.2

57
Table 4.3

Flow Chart 3.3 Cases of waiver of Juvenile Jurisdiction*

58
 HISTORICAL BACKGROUND OF JJS IN UNITED KINGDOM (U.K.)

The British Legal system introduced different treatments for young offenders from
the 1850s onwards, when reformatory and industrial schools were first introduced. In
addition to the creation of new punitive measures for dealing with the young, laws were
passed removing children from certain areas of industry and restricting their activities in
others, while compulsory elementary education was introduced in 1870. In 1889 the
Children’s Charter introduced legal protections for children from various types of cruelty
and enabled the state to intervene in family life. Efforts snowballed as campaigners
pressed in the 1890s and 1900s for greater legal protection and coverage for children and
young people57.

Age of criminal responsibility

Before 1998, a child between 10-14 years was claimed to be incapable to commit to
any kind of offensive situation, if not proved by the prosecution, and if the child had
the knowledge of what is bad and what is good. Presently, the children in between the
age of 10-17 have the capability to commit offences and it is not possible on part of the
child to deny his capabilities of understanding. If a child is not fit for pleading, then
he/she shall not be considered guilty.

In a few exceptional situations most likely the murder case of Jamie Bulger in
Liverpool in the year 1993, it denied trial of children in adult courts. As per the law here,
youths/children who are 17 years and above are taken as adults.

Criminal procedure before trial

Arrest: Post arrest of a child who is between the age of 10-17 years, and is taken to
the police station, Code C to the Police and Criminal Evidence Act, 1984, needs the
custody officer to ascertain the identity of parents, guardian or local authority, or any
other person who has claimed responsibility for the juvenile, and should inform them
57
Children and Young Persons Act 1969
59
about the arrest and the reason behind it. The juvenile is also allowed to have a
conversation in private with the responsible adults, but with a warning that the
conversations are unprivileged.

The juvenile may not go through any interview, or asked to sign any written
statement under caution, or asked to sign an interview record without any appropriate
presence of an adult. A superintendent may take the authority to interview in the absence
of an appropriate adult, if:
 He is sure of the interview not harming the individual’s physical
or mental state; and
 Delay leading to:
 Harming the evidence related to the offence,
 Physical harm to other people,
 Property loss or damage,
 Alert other people who are suspected to have committed an offence
but are not arrested yet, or
 Cause of hindrances of recovering people attained in consequence
of the commission of the offence.
An adult during an interview should:
 Give advice to the individual who is being interviewed;
 Check if the interview is being properly conducted or not; and
 Communicate with the person who is being interviewed.
Prosecution, reprimands and final warnings: Detailed
guidelines have been provided by the Crown Prosecution service.
A reprimand or warning may be preceded by a police officer, under
the following conditions:
 A constable has a proof or evidence that the offender has done any
offensive activity;
 A constable’s consideration of the evidence is such that, if the
offender went under prosecution for the offence, there must be a
real prospect of his conviction;
 the person committing offence accepts in front of the constable to
have committed the offence;

60
  There has not been under conviction of any offence; and
 The satisfaction of the constable states that it would not be in
any interest of public if the offender goes through prosecution58.

A final warning given by a police is more serious out of the two; a final warning or
a reprimand. After receiving one reprimand, a person cannot receive a second one. If the
seriousness of the offence warrants the course, a final warning maybe given without any
reprimand. An individual maybe given a second final warning, in exceptional cases such
as, the offence being committed after more than two years of the date of the first
warning, and if the constable thinks that the offence is not serious enough to be charged.

The final warning or reprimand should be presented to an individual who is below 17

years of age, in the very presence of an adult. After giving a final warning to the
offender, a police officer should recommend him to some local youth offending team,
who are supposed to arrange some rehabilitation facilities for him, until and unless it is
decided that it is not appropriate to do so.

The youth cautions and youth conditional causes by the Legal Aid, Sentencing and
Punishment of Offenders Act, 2012, replaced the system of reprimand and final warning
in the year 2013.

Place of Trial

A juvenile will have his trials in the adult court if he is under charge along with
an adult; else he is supposed to be tried in the youth court.

Table 4.3.1 A Juvenile will have trials in the Crown Court where

Offence Discretion Court

Homicide offences80 Must Crown Court

58
Barry Goldson, The New Youth Justice (Lyme Regis, 2000)
61
Firearms offences where it is Must Crown Court
compulsory for the
application of minimum term

May Crown Court

Grave crimes81
 The court should only
 offences that carry terms
consider representations and not
which exceeds 14 years for
evidence.
adults
 The defendant has no right for
 sexual assault
electing the trail for crown court.
 child sex offences
 It must be a real possibility
that the person making a claim could
be sentenced to a custodial term in
excess of two years.
 The judicial review must
challenge the decision.
Specific offence which is Must Crown Court
punishable in an adult’s case
if the court’s consideration of a
by lifetime or more than ten
significant risk to members of the
years of imprisonment82
public are harmed seriously by the
commission by the person making
offences of any further offences,
specified.

Having trials along with An adult is supposed to have trials in Crown Court
adults the Crown Court.

 If it is a necessity in the justice’s

interests that both of them must
be tried in the Crown Court

62
 An adult is supposed to have trials in Adult
the Court of Magistrates Magistrates'
Court

Juvenile delinquency and the evolution of the British juvenile

courts, (c.1900- 1950i):

We confront with a huge punitive discourse while having a look at the problem of
youth crime, that states ‘clamping down’ on youth offences of ‘zero tolerance’ of ‘anti-
social’ behavior’. This punitive philosophy has been attacked by criminologists and
practitioners within the youth justice, it would not be correct to say that the youth court
has been castigatory in its ways and tone. Instead, as demonstrated by this piece, the
system originates in idealistic attempts of solving social issues through handling the
young working-class people’s deprivations for diverting them from criminal methods
and for encouraging them for playing a role in the society which is constructive.

As a number of charities, religious bodies, and philanthropists have been active in

making provision for orphanages, schools, and medical services for the poor children,
being concerned for the youth’s welfare was nothing new. Nevertheless, as this interest
grew in the 19th, it came with increase in anxiety level about Britain’s position in
the world. These concerns were instigated by arguments about the impact of the
industrial and urban environment upon British society. The fear grew as the poor
physical state of conscripts to the Boer Wars started retaliating prompts through report of
1904 of the Interdepartmental Committee on Physical Deterioration. It was concerned
about the abilities of working-class parents, especially mothers for bringing up strong
and fit workers, instead of giving birth to unruly ruffian. It also was a coincidence and
gave impetus for expanding their roles in public by philanthropic activities.

It was in the 1850s era, when UK legal system realized the importance of treating
these young individuals through reformatory schools. Additionally, the creation of new
punitive techniques to deal with the young, certain laws were passed by removal of
children from a few areas of the industry and restricting them from other activities, but
the education system introduced in the year 1870, was made compulsory. The Children
Charter introduced legal protections for children from different types of cruelty enabling
63
the state for interfering in family life, in the year 1889. Efforts increased rapidly during
1890s and 1900s for ensuring legal protection to every child. These transformation sin
the legal system also ensured evolution of concept of childhood that aimed at
ameliorating the conditions of the youths held in detention and giving them an
opportunity or chance to change for their betterment as well as for the society or
community.

Campaigners started to call in particularly to introduce a special court for handling

cases which involved children and youth, since 1880s onwards. These efforts started to
bear fruit in the Children Act of 1908, one of the few reforms of the Liberal
Governments of 1906-1914, that was inclusive of providing school meals, school
medical inspections and pension for orphans. Herbert Samuel, the Home Secretary, made
use of the new Children Act for consolidating and simplifying a number of existing
pieces of legislation, and introduced new features too. This Act consisted of sex parts:
protecting infant lives; preventing cruelty; prohibiting juvenile smoking; refining roles of
industrial and reformatory schools; creating juvenile courts; and a miscellaneous division
which was inclusive of providing the ban of under-fourteens from houses of public.
Along with extending the power of the state for determining family matters, the Act
made clearer law in a few areas, while introducing the juvenile court to the British legal
systems, formally.

The intellectuals of the British society had a great influence on the courts, as they
play an instrumental role in social, mental and economic development of the juvenile or
the adults. These disciplines went through a partial development as an attempt of
discovering the causes of and solving deviant behaviors and social issues. Other
anthropologists looked for mind, whereas Casare Lombroso, the famous Italian criminal
anthropologist was in search of biological predispositions towards delinquent behaviors.
Child psychology and psychiatry has development at a very slow rate than the adult
study, but came up as a different discipline by the era of 1860s.Since 1860s onwards,
researchers diverted their attention to the psychological issues of childhood and the way
they differ from those the adults suffer. The Child Study Movement laid its foundation in
1893 by a British psychologist, James Sully. Other experts were attracted by this
movement, like, G. Stanley Hall, the American psychiatrist, also providing a forum for
amateur readers, for exploring the psychology and psychiatry of the young. The Child
64
Study Movement started encouraging the thought of children being individuals who
should be treated normally by parents, teachers, and medical and social professionals. It
also brought about radical changes in the functioning of philanthropic welfare activities,
notably the development by the COS of case work. The COS concern was that of the
rational distribution of charitable alms amongst the needy, that they wished of achieving
through the careful investigation and considering the requirements of families,
individually.

The establishment of Cook County Juvenile Court was influenced by the Child Study
Movement and ideas about the ‘scientific’ application of welfare. The Court laid its
foundations in Chicago, Illinois in 1899, by female reformers in connection with the
city’s Hull-House Settlement and its Women’s Club. The motive of the reformers was
for the provision of individual treatment for children who were in trouble and for
neutralizing the impact of poor influence of adult. They had the misconception of
juvenile delinquency being the cause of dysfunctions of families. To be specific about
the misconception, that the parents did not take care of them properly, hence they
misbehaved and broke the rules and laws. The women in attachment to the Cook
County Court highly influenced other courts in the United States, even though the self-
appointed juvenile judge of Denver, Colorado, Ben Lindsay presented an alternate
model. To develop a firm character amongst the youth who were attendees of his court,
Lindsay was a proponent to instill in them the middle-class values of duty, courage, and
self-control. All these developments causing a stir among circles of reformists in the
UK inspired the first British juvenile court, which had laid its establishment in
Birmingham in the year 1900. On grounds of a belief in saving the delinquent young as
a requirement for the society to be protected widely, the British courts shared much in
common with their American counterparts. The causes of juvenile delinquency failed in
character and in role that was fit as a role model, leading to the family failure, in the
Atlantic side.

New issues took place for the people involved in the juvenile courts because of the
outbreak of the First World War in the year 1914. Even though the courts progressed to
establish a new model, they were stretched due to increase in the crimes committed by
the juveniles during the war. Commissioned by the Howard League, Cecil Leeson, for
exploring this phenomena, found that increase in rate of crime was in connection of
65
such role models as fathers, other male relatives, teachers, leaders of boys’ club, and
ones who liked being away at the Front. According to him, the mothers were also
engaged in war works because of which they neglected their children. His findings were
is resonance with the discourse that existed about requirements of youth.

Memoirs like Alexander Paterson’s ‘Across the Bridge’ had exhorted youth
graduates to leave their comfortable surroundings for boys’ clubs at settlement of
universities in the slums of East and South East London, while Charles E.B. Russell had
written about how the interference of a club leader’s sympathy restored the good
citizenship in delinquent boys. A lot of those who were indulged in boys’ clubs, went on
prominently within the juvenile courts, as pointed out by Victor Bailey; Paterson and
Russell, both the inspectors of industrial and reformatory schools are good examples.
Young male who graduated were observed as good role models for young working-class
boys. A model with a lot of similarities was used by the probation officers, while the
boys’ club had a role preventive in nature.
The government committed to the task to reduce and ideally prevent juvenile
delinquency which continued after the World War I, especially due to the Home Officer
getting more comfortable with the changes that the Children Act of 1908. The Children’s
Branch was also authorized to monitor children’s employment in order to prevent any
kind of abuse to the children, and evaluate elating the children, and woman/child
trafficking. The subsequent Act reforms were carried out through the Children’s Branch.

The limits that the Act imposed were not appreciated by the campaigners as well as
civil servants, and they wished to add more proactive ways for reducing delinquency. A
report that the Board of Education commissioned, in the year 1920, debated for a link
between the high wages that the ‘blind-alley’ labor boys earned, the paucity of
constructive leisure activities in a few areas and higher rates of juvenile crime, picking
up themes portrayed by Leeson and other researchers, and the ones who had been
indulged in work of urban youth. William Joynson-Hicks, the then Conservative Home
Secretary, in January, 1925 appointed Sir Thomas Molony as the chairman of a
committee that he formed in order to investigate the treatment of young wrongdoers. At
the time of the committee presenting its report in the year 1927, they came up to the
conclusion that the welfare of the child or youth should be primarily objectified in the
juvenile court. The importance of issues that the Act of 1908 raised, notably that juvenile
66
courts should be held at various times in various times to adult sittings of courts, were
reiterated by the report. It also had demands that the proceedings of the court to be made
simple and possible in order that children and youth might understand this better about
the happenings around them. But, the children and youth were called for remaining
anonymous and to be in no way identifiable in media case reporting. The public
knowledge of a child’s act could prove to be unfair and lessen their chances to find
jobs. It also demanded for the courts to have as much information as possible about the
children’s lives, about their attendance in school, health and the surroundings of their
homes. Probation being an important part of the youth courts, which a method through
which the youth could reclaim good citizenship as he will be guided by an appropriate
adult.
The report proved to be a base for passing of the Children and Young Persons
Bill, which was enacted in 1933. The Act of Children and Young Persons made an
extension of the Act’s features that was based on function of the court. It emphasized on
reclamation of good citizenship by the youth, who tried to act upon the impact that
poverty laid in their lives and to reduce criminal behavioral rate. Even though the
middle-class children undoubtedly came before the courts, often for crimes such as
travelling in a train with no ticket; working-class children were not proportionally
represented in the courts, with the boys forming major part of all the cases. The boys
suffered from a wide range of disadvantages that had arisen from their unfortunate
surroundings: parents who were not able to provide them with appropriate supervision as
they were pre-occupied with taking care of the younger ones or working; restricted
access to extracurricular activities; or parents with high income who could not direct in
spending and saving properly. The Act seems to have been working in shaping the
society based on a balanced expenditure graph.

Poverty not being the prime explanation of delinquency in every case. Magistrates
referred children and youth for psychological tests, by the time of inter-war. This was
under the influence of the Child Study Movement, and specifically of the development
of Child Guidance Clinics. The first clinic set up for Child Guidance was in East
London in the year 1927 by Emanuel Miller on Bell Lane in Spitalfields, which was
financially supported by the Jewish Health Organisation. He debated on delinquency
being caused by negligence and various other forms of poor parenting, and laid an
emphasis on the treatment of those children by the courts needed careful investigation
67
and an secluded approach. He also debated for the use of child guidance clinics
extensively, by all the juvenile courts as a medium to prevent future recidivism.

Few of the juvenile court magistrates, like William Clarke Hall, Basil Henriques,
Cynthia Colville and others, curiously accepted the novel thoughts relating to juvenile
delinquency and its causes. They also focused on the approach of dealing with the young
mass and rehabilitate them. However, rehabilitation of these young offenders was not
chosen as an option by all the Magistrates. The pro-corporal punishment lobby was
still the powerful one- the bill that became the Children and Young Persons
Act 1933, was held up on its way through the Lords so as to restrain the provision to
beat up, as pointed out by Deborah Thom. Males could still be sentenced to a birching,
until the Children Act, 1948, banned the practice. Irrespective of psychologically evident
to the contrary, corporal punishment was noticed as an impactful medium to instill
character into a young man, and was used widely in schools, Forces, and by families.
Boys below the age of 14 underwent huge rate of Corporal Punishment., in the course of
Second World War. In the year 1928 and 1939, 48 and 58 cases of whippings took place
in England and Wales, respectively, which increased to 531 in 1941, and then decreased
to 165 in 1943. This rise was marked during the war time and unavailability of the
Magistrates for case hearing. Hence, the attitude of the system and the concerned
people changed with respect to the youth and the crime committed by him/her.

Having drawn the conclusion, the British JJS underwent significantly noticeable
philosophical changes during the 20th century. Even though many advantages of
corporal punishment were still in discussions, the view of children and youth offenders
needs to be reclaimed and rehabilitated through provision of facilities.
Juvenile delinquency has been seen as an integral part of social matrix, which has
arisen due to social reconstruction and deficient parenting. The solution was seen as
reformation of the structure that caused these issues and inequalities. Thus, the former
part of the 20th century juvenile courts were more concerned with imparting social
justice, which is in best interest of the children as well as the community.

HISTORICAL BACKGROUND OF JJS IN AUSTRALIA –

The history of juvenile detention in Australia goes back almost to the arrival of the
first fleet. The convicts on the first fleet included three boys and two girls under 16
68
(Hughes 1987). There is some irony in the fact that as observed by Seymour (1988)
deported child convicts were often benefiting from special measures, diversion from the
death penalty and the gallows due their tender years. For them it was diversion into a
penal institution - white Australia - rather than out of it59

Recent times have marked an increase in the offences committed by the juveniles in
Australia. This has showcased the failure of the JJS in handling dealing with these young
people committing the offence. In order to deal with these juveniles, the various
Australian Committee relating to Youth Affairs, have been directed to present
recommendations for dealing with the current situation.

The Australian govt. has developed interest in the family group conferences in order
to review the way these child offenders are treated The JJS system in Australia is a bit
complicated, which also makes its objectives more complex, such as punishing the
offenders as well as considering its implications and their rehabilitation.

Academicians have conceptualized the JJS as a "justice model" or "welfare model",

which offers multiple approaches for dealing with children or juvenile in conflict with
law. The "welfare model" deals with treating or rehabilitating the offenders and has
protectionist policies. The model came into existence considering the age of the
offenders. As they are so young, it is difficult for them to come up with self- determining
decisions. In such case, the environment in which a child lives and grows to be an adult
plays a vital role in determining his/her behavior. Thus, the justice system aims at
dealing with these social issues which are the root cause of increased criminal offences,
rather than punishing the child or the juvenile60.

The "justice model", "gives priority to the liberty and agency of its individual
citizens". As per this model, all individuals are responsible for their actions. According
to this model, the justice system gives stress on punishing the offender based on the
degree of the seriousness of the crime61.

59
https://aic.gov.au Visited on 12.09.2017
60
Fay Gale, Ngaire Naffine and Joy Wundersitz (eds.), Juvenile justice : debating the issues (Trove,
1990);
61
N. Naffine and J Wundersitz. Trends in juvenile justice (1994)
69
 In Australia, the "welfare model" has been in consideration and prioritized. Separate
justice system for the children led to the realization that children need to be treated
differently from the adults. Since years, the objective of the children court is to be more
informal as compared to the adult courts, thus offering greater consideration to the
younger mass62. This led to dealing with the child offender in the same way as we deal
with children who are neglected by the family. These children are placed under the
supervision of the welfare department for proper care and protection 63. Even after its
ascendance, the children courts still had some of the features of the adult court
(Seymour 1993). This highlights the differential nature of both the models, and states
that both these conceptual tools cannot integrate into each other completely.
In England, as per the citing of Pratt (1989), none of the two model systems offers an
apt description of the JJS, which is in line with the JJS of Australia. The issues relating
to the reforms of JJ Act under laid the assumption that juvenile's condition can be
dichotomized. The fallacy relating to this assumption became apparent as outcomes of
the JJ initiatives we that were implemented during 1970s and 1980s.

There were a number of shifts in the policy such as "back-to-justice" movement,

which was framed by "justice" and "welfare" models discourse. This ensures access of
the juveniles to the justice system. The procedure protected the young person. South
Australia was the first to opt for the "back-to-justice" approach. By 1992 all states
adopted the approach, except for Tasmania. These reforms are based on separation of
children who are offenders and those who are in need of care and protection. The Act
also aims at introducing effective and determinate sentencing for the child offenders.

However, "welfare model" and its components were not overlooked completely. The
states and government departments started considering these children as part of the
society along with considering them as the future of the country. This has led emphasis
on developing employment opportunities for the juveniles when they attain the age of
doing job, assuring education, and so on.
De-structuring was the second major reform agenda that aimed at closure of cases
and releasing of the children and juveniles from the institutions and reintegrates them

62
N. Naffine. “Assimilating feminist jurisprudence” 11 LC 78 (1993)
63
N. Naffine, J. Wundersitz and F. Gale. “Back to justice for juveniles: The rhetoric and reality of law
reform” 23 ANZJC 192-205 (1990)
70
into the community. This was referred to as the "labeling theory" according to academic
criminology. According to the theory, the children and juvenile offenders will not be
labeled as “offenders”. Lemert (1967) argued that the results of these reforms can be
reverse, i.e., if such children or juveniles come in contact with the formal system, this
might led to increase in their likelihood to get engaged in such activities.

According to Polk (1987), how far the labeling theory would affect the decision of
the policymakers remains unclear. Firstly, the prime aim was to divert the children or
juvenile offenders to alternate programs to avoid detention for as long as possible. In
addition to this, the introduced reforms enabled the system for keeping the children
out of such institutions, thus making "diversion" and "deinstitutionalization" in the prime
objectives of justice system of Australia, which was again different from different states.
For example, informal children panel consisting of a police officer and one social
worker, were experimented by the South and Western Australia as an alternative to
formal court system. A police cautioning system was put into action in Victoria and
Queensland that successfully diverted these children from the court system.

Currently, there has been an increasing trend of dissatisfaction towards this

legislative change, especially among the academics. Taking into account the "back-to-
justice" movement, it seems to be difficult for the juveniles or children to fight for their
rights and they are left as passive spectators in the justice system. Their decisions are
basically dominated by legal professionals or adults.

The most stated criticism refers to net widening. According to this concept, few
of the reforms increased juvenile detention in the correction homes rather than creating
alternative programs. In US, such instances have been marked where the referrals of
young people increased to the formal court systems or agencies like that of psychiatric
and drug programs.

Reviews of diversion and deinstitutionalization have drawn attention to issues such

as: extension of the juveniles to contravene their legal rights; alternatives to detention;
and determination of objectives of schemes and programs and whether they are for best
interest of the children (Cohen 1985).

71
 Many previous studies have been focused on the current JJS in Australia, in which
the major reason for such reforms dated back to 1990s, which was mainly by political as
well as pragmatic concerns. Few researchers believed in harsh punishments for the
children or juvenile offenders, mainly who were involved in serious crimes, and were
stated as conservatives. They believed that the community was not well protected from
such miscreants as the legal punishment was very lenient. The interests and concerns of
According to them, the victims do not get justice, as the legal system excludes them
from the actual process and also they are denied restitution. . The cause for such reform
was set out by the social workers who worked with these children or juveniles, which led
to separation of "care" and "offending" cases. These juveniles are getting frustrated
because of the unavailability of services in the special homes.

Juvenile Justice System in focus

Juveniles 10-16 years in Queensland and 10-17 years in other parts of Australia) are
involved in property crimes as compared to violent ones, such as vandalism, shoplifting,
graffiti, traffic offences, and so on.
In Australia, for the above mentioned crimes, 6 years or children younger to this age
were incarcerated. However, the present approach is different, which considers detention
as the last option.

A different approach:

The country’s legislation recognizes high vulnerability of juveniles as compared to

adults. This is because they lack maturity to deal with such situations and at times they
are easily influenced by their peer group or any other adult. Thus, any legal sentence can
lead to increase in the crime rate among these young people during their adult life.

Hence, some of the policy measures to deal with the juveniles who are in conflict
with law include restorative justice conferencing and convening specialty courts.
Trends:

Since 1981, the juveniles of Australia have been monitored by the AIC. In 1981,
64.9 juveniles were detained out of 100,000 population, which dropped down to 37 in
2008. However, over-representation of indigenous juveniles is still in rise.
72
 As stated by the Young Offenders Act of 1993, family conferences are considered
important for restoration purpose when the crime committed by the juvenile is minor.
This meeting provides an opportunity for the victims, offender, their families and police
officer to discuss. The family conference is chaired by a Youth Justice Coordinator
(YJC).

At the end of the meeting, an agreement is signed between the parties for apology or
fine deposits, performance of community service by the offender, and so on. . Victims
get a chance to present their thought and point of view. These undertakings are
monitored by the YJC. This whole process makes the offender responsible and works
towards a restorative process.

Australian Juvenile Justice System:

The rate of detention per 100,000 populations is 31, and detention in NSW is 38. In
places where preventive programs were active showed detention rate of 56 in Western
Australia, 99 in Northern Territory and nine in Victoria. Based on these high ratios, most
of the states have implemented reforms focusing on restoration.

JJ Programs – Overview

Previous studies conducted by the researchers in India, USA, United Kingdom, and
Australia showed ineffectiveness of traditional penal or ‘get tough’ methods in reducing
juvenile crime Due to its stigmatized effect of labeling the juveniles who are offenders,
reinforcing the criminal behavior of the offenders, lack of pro-social influences and so
on.
The effective JJ schemes and programs deal with addressing the important factors
behind the behavior of the juvenile, such as focusing on risk reduction, and
strengthening of the ‘protective factors’ like good parenting, or getting enrolled into
part-time job. It highlights the importance of diverting these juveniles to into alternative
systems from entering into the JJS. Effective ways include family or community based
therapies, which are cost effective and that generate long-term savings for the taxpayers.
There early intervention programs can be treated as effective preventive programs in
order to reduce the number of detention cases of children and juveniles.
73
 Institutional programs along with post-release programs are crucial factors for the
JJS. The evidence suggested that the most of the effective and secure corrections
programs deal with small section of juveniles to whom they offer tailor made services.

CHAPTER – III

INTERNATIONAL PERSPECTIVE ON JUVENILE JUSTICE

AND CONVENTIONS

Children belong to specific category due to their physical and mental stage,
process of development and immaturity. On both development of the child and on
their deviant behaviour, three factors make a great impact such as family, the
environment and personality64. The family is a base for the formulation of the juvenile
personality. Child is going to accept values from the family members through
cultivation, socialization and individualization and it will be reflected on his/her attitude
towards the crime. Moreover, child accepts some common ways of living through the
process of socialization. Failure in this can lead to deviant behaviour or even to
delinquency. On the other hand, biological and psychological characteristics have also
an impact on the deviant behaviour.
With the aim of regulating juvenile delinquency in the law, it is essential to have
a clear notion of a child. Universal Declaration on the Rights of the Child, adopted by
General Assembly Resolution 217 A, gives definition of a child as “every human being
below the age of eighteen years unless under the law applicable to the child, majority is
attained earlier” (Art. 1).
On the other hand, term juvenile does not inevitably correlate with the notion of
child. It is due to a fact that the United Nations Standard Minimum Rules for the
Administration of the Juvenile Justice, adopted by General Assembly Resolution 40/30
(hereinafter referred to as The Beijing Rules), adopted by General Assembly Resolution
217 A, in 1948, define a juvenile as “a child or young person who, under the respective
legal systems, may be dealt with for an offence in a manner which is different from an
adult” (Art. 2 (a)). Moreover, notion juvenile offender is also regulated with the Beijing
Rules as “a child or young person who is alleged to have committed or who has been

64
(Lugović & Ilić, 2011:386)
74
found to have committed an offence” (Art. 2 (c)). But the fact that the Beijing Rules
leave the legal definition of juvenile to national legislations represents a shortcoming of
it. It was partly corrected with the Universal Declaration on the Rights of the Child that
says that Article 40 applies to all children up to majority, no matter how is their position
regulated in national law.
Moreover, unlike the Beijing Rules, the United Nations Rules for the
Protection of Juveniles Deprived of their Liberty define a juvenile as “every person
under the age of 18” (Rule 11 (a)).
The age limit of childhood is different from country to country. There are
countries where childhood ends at the age of ten, somewhere at thirteen, or eighteen,
but there are countries where it ends with 21. That depends on society, culture, tradition
and legal regulations.

Furthermore, there is no consensus of the criminal responsibility age in Europe

and the rest of the world and it is left to each state to identify it. It was listed in the
European Rules for Juvenile offenders in the Article 4 and it is said that is ‘shall not be
too low’ (Rule 4). But this determination is not precise and good enough. The age limit
for Republic of Serbia and Republic of Slovenia is fourteen.

Definition of juvenile delinquency

Juvenile delinquency is considered as a separate category within the general

crime due to specifics regarding biological, psychosocial, criminal-political
characteristics and because of a special place that juveniles have in the legal system65.
This negative social phenomenon is characterised by a series of special
phenomenological and etiological characteristics that separate it from the criminality of
adult persons (A. Mirić, 2014:5). Furthermore, according Skakavac, this phenomenon
represents significant part in the total number of crimes in the most countries in the
word. (2014:1).
There are different theories of juvenile delinquency. Some academics see it “as
an action that violates the law, committed by a person under the legal age” 66.
Furthermore, Glueck and Glueck define delinquency as a “behaviour of children and

65
(Skakavac, 2014:1)
66
(Burfeind & Bartusch, 2015:6)
75
juveniles punishable by criminal law and that would be defined as criminal if they were
committed by adults”67. On the other hand, there is an opinion that it is absurd to define
criminality of juveniles as a juvenile delinquency due to the fact that delinquency is the
broader concept and that is punitive action, which includes not only the criminal
offenses, but also crimes, and economic offenses.
A. Mirić defines three categories of minors who have problems with the law:
deviants, delinquents and criminals. Deviants represent the offenders who with their
behaviour violate cultural norms and habits of society and these violations do not result
with prosecution. However, it brings a judgment by an individual or a group. Juvenile
delinquents have an offensive behaviour which has its psychological, social-
psychological, individual causes and reasons and this behaviour violates common
forms and patterns of behaviour. The last, criminals are psychophysically healthy
persons who act with a high degree of certainty that that will lead to the execution of a
criminal offense.

International Instruments Regulating Status of Child

Children’s rights are of great importance for international community and they
are regulated with numerous international instruments and treaties. Being a vulnerable,
or in specific category, there is obvious need to protect juveniles in every aspect of their
lives (family, education, freedom of expression, health, conscience and religion,
protection against exploitation, protection of the children with special needs, in armed
conflicts and so on). The children who have troubles with the law and are involved in
criminal acts require a compelling need for particular regulation on international level.
Evolution of the international regulation in the field of juvenile delinquency was in
parallel process with the development of children's rights.

The children rights are part of the numerous international instruments that
provide both their rights in general and the rights of the juveniles deprived of their
liberty. Some of these documents have obligatory character for the member states, for
example, the UN Convention on the Rights of the Child, and some of them represent
soft law with a form of recommendations how to react on a juvenile crime such as the

67
(Ignjatović, 2011:15)
76
United Nations Standard Minimum Rules for the Administration of the Juvenile Justice
and other. Furthermore, this is organised on the national levels with domestic laws in
order to organise this area more specifically to ensure the achievement of the goals.
Here will be analysed documents from international organisations
that manage the children rights or that can be of interest for execution of
criminal sanctions and represent secondary source of law: Convention on the
Rights of the Child with the Committee on the Rights of the Child, Universal
Declaration of Human Rights and European Convention on Human Rights.
Due to the number and scope of documents it limits possibilities for more in
depth analyses.

77
Universal Declaration of Human Rights

Universal Declaration of Human Rights (hereinafter referred to as the

UDHR) was adopted and proclaimed by the United Nations General
Assembly on 10 December 1948 and it represents “a mixture of the rights of
the most diverse nature"68. It proclaims fundamental human rights that should
be universally protected. Moreover, it highlights, in Article 2, that principle
of non-discrimination is crucial no matter of race, colour, sex, language,
religion, political or other opinion, national or social origin, birth or other
status. Provision which refers also to a person deprived of their liberty is in
Article 5, and proclaims that no one can be subject to torture or cruelty,
inhuman or degrading treatment or punishment. Next, according to Article 9,
no one can be subject to arbitrary arrest, detention or exile.
There are critics of the UDHR. One of them is the fact that everyone has the
right to live in society where all the rights from the UDHR are fulfilled (Art. 28, the
UNHR). The critique is the fact it does not say how it can be done. Moreover, not
having significant number of countries is considerable drawback. This declaration is not
legally binding. However, previous mentioned rights need to be respected. Also, “the
rights set onward in the UDHR may not have been recognised in all countries of the
world, but today people are increasingly demanding and gaining respect for their rights
and freedom”69.

1. European Convention on Human Rights

Council of Europe was established after the World War II with the aim to
prevent atrocities to happen again. Three main goals of the Council of Europe are:
respect of human rights, democracy and rule of law. In order to achieve this, Assembly
proclaimed European Convention on Human Rights in Rome 1950 (hereinafter referred
to as the Convention). It has been believed that “the Convention remains by far the
most successful manifestation of the aspiration of the UDHR and that it has created the
most effective system for international protection of human rights in existence”.
68
Tomušat, 2006:77
69
Alfredsson & Eide, 1999:25
78
 It is legally binding document which means that member states are accepting the
obligation to respect its provisions. Only Article 5 and 6 refers directly on juvenile
delinquency, nevertheless it is still significant.
Firstly, prohibition of discrimination on any ground such as sex, race, colour,
language, religion, political or other opinion, national or social origin, association with
a national minority, property, birth or other status is regulated under Article 14. That
implies on minors as well since these rights belong to everyone.
Prerequisite for becoming a Member State of the Council of Europe is to
abolish death penalty. Next, torture, inhuman or degrading treatment or punishment is
strictly forbidden under Article 3. Great importance for the juveniles are the right of
liberty and security, right to a fair trial and no punishment without law, that are
regulated under Article 5, 6 and 7, respectively.
No one can be deprived of the liberty except when it is prescribed by the law
and Article 5, 1(d) says that detention “of a minor by lawful order for the purpose of
educational supervision or his lawful detention for the purpose of bringing him before
the competent legal authority.”
The right to a fair and public hearing by a court is authorized by the law. Even
though the trial needs to be public, there is a possibility to exclude public from the trial
if it is “in the interests of morals, public order or national security in a democratic
society, where the interests of juveniles or the protection of the private life of the parties
require so” (Art. 6, 1, the Convention). Everybody is presumed innocent until proven
guilty is a vital provision.
Act needs to be listed in criminal law as a crime in order to make it possible for
someone to be held guilty (Art. 7, the Convention).
The Council of Europe is important organisation for many fields of human
rights, such as fight against discrimination, xenophobia and organised crime, but also to
make all human rights of juveniles deprived of the liberty to be respected. It “strives to
stay loyal to the values that traditionally distinguish juvenile criminal law in Europe.
So, despite insisting on the clear defined position and responsibility of juvenile
offenders, the Council of Europe opposes a trend of repressive treatment towards
juveniles, and strives to popularize education and to support the full reintegration of
these people”70.

70
Kovačević, 2013:105
79
 European Court for Human Rights

Significance of the Convention is that there is a protective mechanism that can

be used when member states do not respect it. European Court for Human Rights
(hereinafter referred to as the ECHR) is established for this purpose and it proclaims
that states have liberty to decide how they would fulfill their obligations and that they
don't need to transfer them from the Convention directly into their national legal
systems. However, the ECHR made important decisions about juvenile deprived of the
liberty that needs to be respected.
One of the important decisions is the one from the case Adamkieuwicz v.
Poland71 where is stressed out that the best interest of the child should be protected.
Moreover, the age of juvenile, level of maturity and intellectual and emotional
capacities need to be taken into account.
The ECHR admits that the detention in prison can be used, but it needs to be the
last resort and it needs to last for the limited period of time. Next, every specific case
and personality of person should be considered. Finally, the ECHR agrees that minors
should be separated from adults (Nart v. Turkey)72.
Dushka v. Ukraine pointed out the vulnerability of the child while deciding if
the treatment can be qualified as inhuman or degrading.
Concurring opinion from two judges in the case Nortier v The Netherlands73,
pointed out that minors are entitled to the same fundamental rights as adults, whereas
personality, its development and limited social responsibility should be considered
while applying the Article 6 (the right on a fair trial). Furthermore, states should
provide the children with the special care and assistance in order to fully assume
responsibilities in the communities.

71
(no. 54729/00) (European Court for Human Rights February 3, 2010).
Retrieved from http://hudoc.echr.coe.int/eng?i=003-3047306- 3370597#{%22itemid%22:[%22003-
3047306-3370597%22]}
72
Nart v. Turkey, (no. 20817/04) (European Court of Human Rights May 6, 2008). Retrieved from
http://hudoc.echr.coe.int/eng?i=001-86189#{%22itemid%22:[%22001-86189%22]}
73
(no. 13924/88) (European Court of Human Rights August 24, 1993).Retrieved from
http://hudoc.echr.coe.int/rus#{%22itemid%22:[%22001-57835%22]}
80
 2. Convention on the Rights of the Child

The main international document in area of the rights of the child is Convention
on the Right of the Child (hereinafter referred to as the CRC) that was adopted by
General Assembly Resolution 44/25 on 20 November 1989. It is the fundamental
world-wide document that deals with children in general, concerning all aspects of
children’s lives, and also the situation when children have the problems with the law. It
is argued that “the Convention was an overdue response to the urgent need to elaborate
a legally binding document that would focus exclusively on the specific needs and
interests of the child, which, as will be seen below, differs in important aspects from
those for adults74”.
Additionally, it is the first legally binding document for childred rights.
Importance of the CRC, compared with other documents, is that it represents the
instrument that combines all groups of human rights (civil, political, economic, social
and cultural rights) of every child with respect of principle of non-discrimination on any
ground such as race, colour, sex, language, religion, political or other opinion, national,
ethnic or social origin, property, disability, birth or other status. Other documents
separately regulate one of these areas.
There are four articles of the CRC that represent General Principles due to their
importance for all children. Non-discrimination (Art.2, the CRC), the best interest of the
child (Art.3, the CRC), the right to life, survival and development (Art.6, the CRC) and
the right to participate are fundamental rights for the all children (Art.12, the CRC). The
best interests of the child must be in the centre of any decision-making process and
adults need to consider what the best is for a child before deciding. Every person has
inherent right to live so it is crucial to make conditions for children to be healthy and to
survive. In decision-making process adults need to give children a chance to give
opinion and take it into account. Yet, it is needed appropriate child maturity to express
their view (Convention on the Right of the Child, 2014).
The CRC is one of those conventions that is ratified by most of the countries in
the world. That shows the importance of the child status and occupation and it is
promoted by significant number of national administrations. With ratification of this
Convention, no state can say that attitude towards children is its internal thing, but
states are obliged to implement the standards into domestic laws. However, “it is clear
74
The Rights of the Child in the Administration of Justice, 2008: 339
81
that a considerable number of the Member States still have a long way to achieve full
compliance with the Convention”.
The CRC relies on the matter that the United Nations have announced that
childhood is entitled to special care and assistance, that provides guidelines for a
specific protection of minor offenders.
The CRC gives a definition of the child under Article 1 as “every human being
below the age of eighteen years unless under the law applicable to the child, majority is
attained earlier”. But the beginning of childhood is not defined and period when it starts
(with the moment of conception or at the birth) depends on the culture and tradition of
specific countries (The Rights of the Child in the Administration of Justice, 2008:401).
Nevertheless, defining the age at which child starts to be mature and until when the
specific rules need to be applicable on children, is of crucial importance because it is
also used to establish the lines for age responsibility of juvenile offenders. But this
provision is not the strict one, so there is a possibility in many countries to become
adult in younger age.
When it comes to criminal responsibility of a child, the CRC regulates
it under the Article
37. A basic requirement for protection against torture or other cruel, inhuman or
degrading treatment of the child is stressed out. Capital punishment and life
imprisonment cannot be proclaimed to the person younger than eighteen years of age.
Additionally, the same Article 37 regulates the conditions of a deprivation of
liberty. Unlawful or arbitrary deprivation of liberty is forbidden and imprisonment
needs to be used as the last resort and it may last the shortest time possible. When it
comes to a deprivation of liberty, the child should be treated in human way with respect
of his or her needs and age. While the child is in detention, separation of the children
from adults is important, unless it is in the best interest of the child. Also, contacts with
family need to be provided. Furthermore, the child has a right to a legal help, to
challenge the legality of detention before the court or other authority and the right to
resolve such a request by urgent procedure.
Article 40 of the CRC provides necessary characteristics of the procedure for
determination of possible responsibility of the child for offense. In the procedure, it is
important to respect the human rights of the child, fundamental freedom, and the age of
the child. Re-integration and positive role in society is a final goal of procedure.
Also, procedural rights of the child are also guaranteed such as: presumption of
82
innocence until proven guilty; to be informed about the charges; to be processed
without delay by adequate bodies; not to be forced to give testimony or to confess guilt;
right to free interpreter when child does not speak the procedural language and privacy
of the child is crucial (Art 40, para. 2, the CRC).
The Convention demands that Member States adopt laws, procedures and
necessary institutions specialized for work with children. In penal code, it is especially
important to determine a minimum age under which a child cannot be criminally
responsible.

Final provision of Article 40, para. 3(b) says that “care, guidance and
supervision orders; counselling; probation; foster care; education and vocational
training programs and other alternatives to institutional care shall be available to ensure
that children are dealt with in a manner appropriate to their well-being and
proportionate both to their circumstances and the offense” (the CRC).
Convention on the Rights of the Child is, as an obligatory document, of great
importance for ensuring children rights in general, but also the rights of child
delinquents. Due to a fact it includes wide range of children rights, it is understandable
that the reaction on juvenile delinquency is not regulated more specifically75 . Despite
that, the importance of the Convention for rights of juvenile offeders is indisputable.

Committee on the Rights of the Child

With ratification of the Convention on the Right of the Child, member states are
obliged to respect its rules. In order to make an impact on member states to implement
CRC into domestic legislation, the UN, with proclamation of its organisation in the
CRC, established Committee on the Rights of the Child. The body consists of eighteen
independent experts with the purpose to monitor implementation of the CRC and its
three Optional Protocols76.
Committee considers periodical reports which Member States use to inform this
body every five years about the taken measures with the aim of improvement of the
status of the child. Moreover, Member States are bound to submit an initial report in the

75
Kovačević, M. (2013). International Standards in the Field of Criminal Sanctions and Masures for
Juvenile Offenders (Doctoral Dissertation). University of Belgrade, Faculty of Law, Belgrade
76
Committee on the Rights of the Child, 1996-2017
83
period of two years after ratification of the Convention. If additional information is
needed, Committee can ask the state to provide necessary information.
Convention proclaimed that Committee members needed to meet once a year
and duration of the sessions is not determined. However, due to a considerable amount
of work, General Assembly allowed them to meet two times per year or even more
often.
Committee provides Member States with suggestions and recommendations
according to received reports and data. The Committee's main drawback is the fact that
it does not have mechanisms to make a country act in the way the body thinks it should
or to implement particular facts. The recommendations are not obligatory to the
submitter of the report and they do not need to change, improve, and promote certain
things that are found as a deficiency by the Committee. Nevertheless, the Committee
has an impact through political pressure on Member States when it comes to breach of
articles.
Another shortcoming of this body, until recently, was the lack of possibility for
individuals to submit the violation of their rights proclaimed by the Convention. But
this was changed with third Optional Protocol on a communications procedure in 2011.

Specific Documents Regulating Juvenile Delinquency

Despite previously analyzed instruments, there are more specific ones regulating
this crucial group of the juveniles that should have more specified protection due to a
fact that they belong to the vulnerable category of people which need particular
treatment in order to make possibilities for them to integrate into society. These
instruments can be divided by organisations that adopted them.
Even though these documents represent the soft law, they have decisive role.
Despite of the fact that they are not binding, they make an impact on the states to
comply with the proclaimed standards. It is because of the prestigious organisations
which adopted them, and usually states want to be respected in international
community, so they try to implement at least some of the recommendations into
national legislations. But the question that stays is whether they respect them in the
practice. Moreover, soft law leaves the space for the national legislators to adapt rules
to the national conditions and it is of great importance because the Member States are in
84
different stages of development and all rules cannot be applied to all of them.

1. United Nations Documents

Due to a fact that the United Nations is the one of the most important
international organisation with the significant number of the member states (193
countries), the importance of this organisation is obvious. The UN works in many fields
and one of them are human rights. All this point out that documents adopted by this
organisation, are essential.
The UN noticed that the juvenile delinquency started to increase since the 1990s
and that there is a category of children in danger of becoming a delinquent due to
difficult circumstances they live in. Moreover, “the problem of juvenile delinquency is
becoming more complicated and universal, and crime prevention programs are either
unequipped to deal with the present realities or do not exist77”. So, in order to deal with
this, numerous documents were adopted.

United Nations Standard Minimum Rules for the

Administration of the Juvenile Justice

These rules were adopted by General Assembly resolution 40/30 of November

1985 and they are known as the Beijing Rules.
It was the first comprehensive document with the basis for successful work of
national juvenile justice systems, but also for states reaction to juvenile delinquency and
protection of the child in these situations. It is emphasized that “juvenile justice shall be
conceived as an integral part of the national development process of each country,
within a comprehensive framework of social justice for all juveniles, thus, at the same
time, contributing to the protection of the young and the maintenance of a peaceful
order in society” (Art. 1.14, the Beijing Rules). In spite of that, The Beijing Rules is not
a treaty so the document is not binding for Member States.
The Article says that “these rules shall be implemented in the context of
economic, social and cultural conditions prevailing in each Member State.”
Nevertheless, the question is if the poor states, which cannot deal with the problems
77
World Youth Report 2003: The Global Situation of Young People, 2004:190
85
concerning majority of the children and population, are capable of implementation of
these rules and improvement of juvenile justice system78.
The document proclaims the rules need to be respected from the moment of
deprivation of the liberty till the moment of leaving the institution and it is divided on
the next six sections which show procedural phases that juvenile needs to go through
during the criminal procedure.
Among common principles in the part one, it is also listed as necessary for
Member States to make conditions for proper community life in order to support
personal development and education without criminal and delinquency (Art. 1.12, the
Beijing Rules). Moreover, “sufficient attention shall be given to positive measures that
involve the full mobilisation of all possible resources, including the family, volunteers
and other community groups, as well as schools and other community institutions, for
the purpose of promoting the well-being of the intervention under the law, and of
effectively, fairly and humanely dealing with the juvenile in conflict with the law” (Art.
1.13, the Beijing Rules). From these rules, it can be concluded, that the effective
suppression of juvenile delinquency requires a responsible attitude of the society
towards juveniles, both at the stage before the manifestation of anti-social signs
behaviour and later. Moreover, each country is left to decide the age its own scope for
criminal responsibility (Art. 4.1, the Beijing Rules).The well-being of the juvenile
needs to be the base (Art. 5.1, the Beijing Rules) in order to achieve successful re-
integration of the juvenile as the main goal of the punishment.
Part two regulates investigation and prosecution which provide information
about initial contact, diversion, specialisation within the police and detention pending
trial. The last one is of big importance due to a fact that it highlights the significance of
using the detention pending trial as the last resort and when it is used, it is crucial to be
as short as possible. Furthermore, alternative measures should take their place in any
occasion when it is possible. Also, juveniles in custody should be separated from adults.
The Standard Minimum Rules for the Treatment of Prisoners which were adopted by
the UN should be applied on them. In detention care, protection and other assistance
related to their age, sex and character shall be provided to all minors (Art. 13. the
Beijing Rules).
Principle of the last possible use of institutionalisation is proclaimed by the
78
Van Bueren, G. (1995). International Law on the Rights of the Child. The HAgue, The Netherlands:
Kluwer Law International
86
Article 19 and it means that juvenile offenders should be placed in institution as the last
resort and the period of staying should be as short as possible. Also, the Article 22.1
stresses out the need for professionalism of all people who deal with offenders as one of
the prerequisite for successful impact on resocialisation of minors.
Next, part four deals with non-institutional treatment and it emphasizes the
necessity for any kind of assistance with the aim to help in corrective process. Help can
be provided in education, employment of juveniles and so on by volunteers, voluntary
organisations and local institutions with cooperation of family of juvenile.
Part five applies to treatment in institutions. Some of the main rules are that
juveniles should be treated in the way that would help them in re-socialisation and
contribute to their inclusion in society. Minors should have access to education in order
to leave institutions with appropriate education or skills necessary for certain jobs. As it
was mentioned in one of the previous rules, juveniles should receive protection, care
and assistance in any area and they should be separated from adults (Art. 26.2-3, the
Beijing Rules). Furthermore, female juveniles need special attention based on their
needs and problems (Art. 26.4, the Beijing Rules). Moreover, conditional release should
be used as much as it is possible and after release the juveniles would receive all
necessary help and they would be under the supervision of authoritative organ (Art.
28.1-2, the Beijing Rules).
Some of the aims of the Beijing Rules are: improvement of the wellbeing of
juveniles that have trouble with the law; condition improvement in the state for
successful growth of the child; motivation of the state to develop diverse programs that
would decrease the number of the juveniles that go through formal criminal procedure;
well organised juvenile justice systems in order to protect juveniles, employment of
professionals dealing with this specific category and having rules consistent with other
laws in the county.
The fact that the Beijing Rules were the first instrument that combined juvenile
justice in one document and that all instruments adopted afterwards were supplement to
this one shows the importance of it. Adoption of it was turning point in regulation of
this vital area and started new ways of approaching and regulating of this area.

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United Nations Rules for the Protection of Juveniles Deprived of
their Liberty

The document (hereinafter referred to as the JDL Rules) was adopted by

General Assembly resolution 45/113 on December 1990 and complements to the
Beijing Rules. Moreover, it is the most comprehensive document with the minimal
standards and procedures which need to be followed in the cases of the deprivation of
liberty of juveniles. These standards are compatible with human rights and fundamental
freedoms.
The main aim of it is successful assimilation in society. In order to achieve this,
it is important to make public awareness that minor offenders should be integrated and
accepted. That can be done with their interaction (Art. 8, the JDL Rules). The principle
of non-discrimination needs to be followed with no discrimination of any kind such as
race, nationality, ethnicity, sex, age, social status or any other judgment (Art. 4, the JDL
Rules). It is important that “deprivation of liberty of a juvenile should be a disposition
of last resort and for the minimum necessary period and should be limited to
exceptional cases” (Art. 2, the JDL Rules). Moreover, the Article 6 of the JDL Rules
says that minors need to have translator for their national language if they do not
understand the language in detention facilities or the language of a procedure,
especially for medical examination and during disciplinary proceedings.
The JDL Rules provide definitions crucial for dealing with juveniles deprived of
their liberty. Unlike the Beijing Rules, they give the definition of juveniles, with the age
limit of the age of eighteen. Moreover, they leave to the national laws to determine the
limit under which child should not be deprived of his/her liberty (Art. 1 (a), the JDL
Rules). It is important to emphasize that these rules are applicable to all the types of
detention centres for juveniles (Art. 15, the JDL Rules).
The Article 17 of the JDL Rules gives guidelines for the treatment of juveniles
who are arrested or waiting for trial with importance of presumption of innocence.
Furthermore, if it is inevitable, detention needs to last the shortest possible time.
Connection with lawyer and respect of the privacy and confidentiality should be
provided (Art. 18 (a), the JDL Rules). Important thing is to provide educational and
work opportunities to juveniles as example of good practice because these minors
should not have different treatment form the convicted juveniles (Art. 18(b), the JDL
Rules).
88
 The way how the facilities should be organised is also covered by this document
and it consists of the next chapters:
A. Records (reports, legal, medical records, records of disciplinary
measures and other) should be confidential and after the release, they should
be sealed (Art. 19, the JDL Rules).
B. Admission, registration, movement and transfer proclaim the
standards for information needed about every juvenile in the institution and
they should be collected as soon as possible after coming to the institution
(Art. 21, the JDL Rules). Also, parents or guardian shall be informed about
the transfer of juvenile organised in a way which is not going to influence
on their dignity or produce suffering (Art. 22 and 26, the JDL Rules).
Articles 24 and 25 proclaim that rules of the facility should be provided to
a minor and all of them should be clear to him or her.
C. Classification and placement (Art. 27-30, the JDL Rules): juvenile
after acceptance into the facility should be interviewed, it should be done
psychological, medical examination and after that the individual plan of
treatment is required to be made. All individual characteristics such as age,
personality, sex, type of offence, physical and mental health need to be
considered while making the personal program. It is important to separate
juvenile and adults in detention

centres. However, they can be put together if it was found that it can have
positive effects on juvenile, but only after detailed analysis of adults. Also,
open centres with minimum security measures and with minimum number
of offenders, should be opened with the aim of bigger possibilities for the
integration in society after individual treatment.
D. Physical environment and accommodation should be organised in
the way to make an impact on the successful treatment. Also, privacy,
association with other juveniles, being a part of the sport activities and
physical exercises are important. Every juvenile should be provided with
individual clean bed. Next, clean sanitary installations shall be stationed to
provide privacy. It is important to allow juveniles to have their own
adequate clothing in institutions and not to degrade or humiliate them. And
final, juveniles need to be secured by healthy food and water with respect

89
of culture or religion.
E. Education, vocational training and work (Art. 38-46, the JDL
Rules): one of the most important things is to provide juveniles with
possibility to continue their schooling that is vital for their re-socialisation.
Education should be organised in schools outside the institution and after
the release they need to have opportunity to continue with education.
Minorities or minors with difficulties need to have special educational
system. After finishing school in detention centre, certificate needs to be
without any indicator that they finished it in these facilities. In order to help
them finishing school, every facility needs to have a library with necessary
literature. When it comes to vocational training, juveniles have the right on
choosing type of work that they want with the respect of the standards for
child labour. While working, they should receive a salary for their work.
Also, after leaving institution the help with finding a job should be enabled.
Education is important for many aspects of juvenile future life and
represents the way of rising work opportunities for juveniles and that leads
to reduction of their participation in crime (Hjalmarsson & Lochner, 2012).
F. Recreation is regulated with the Article 47 and is important part of
the treatment. Time for free exercise in the open space needs to be
organised. Furthermore, free time for leisure actions is important with
possibility of development of art skills of juveniles. It is needed to provide
possibility of participation in programs of physical education and therapy.
G. The freedom of religion needs to be respected with grant of attending
the services, having books, religious items and meeting with religion
representatives (Art. 48, the JDL Rules).

H. Medical care needs to be provided preventive and remedial through

the health institution in the community (Art. 49, the JDL Rules). Physical
health is important and examination needs to be done after coming to the
facility in order to detect if illness or some condition that needs to be
treated occurred (Art. 51, the JDL Rules). Article 54 proclaims that
programs for drugs or alcohol addicts should be adjusted to personal
characteristics.
I. Notification of illness, injury and death (Art. 56, the JDL Rules)

90
 needs to be provided to family members or guardians within 48 hours.
J. Contacts with the wider community as it was mentioned before, is
significant part of the return of juveniles in society and they need to have
contact with their family and friends through allowance to leave centre and
visit them, to receive a visits from them, writing or telephoning them (Art.
59-62, the JDL Rules).
K. Limitations of physical restraint and the use of force: caring and
usage of weapons should be prohibited in these facilities with exception of
cases when it needs to be used for the shortest possible period of time and
according to the law and only after all methods have be exhausted (Art. 33-
34, the JDL Rules).
L. Disciplinary procedures are regulated with the Article 66 and they
need to be taken with respect of the dignity and safety of juvenile and cruel
or degrading treatment is prohibited.
M. Inspection needs to be conducted regularly, independently and with
inspection of every person working in institution (Art. 72, the JDL Rules).
Moreover, juveniles have a right to complain about their treatment (Art.
75, the JDL Rules).
N. Return to the community is one of the aims of punishment with
possibility to continue education or work. It should be done through
assistance of certain agencies (Art. 80, the JDL Rules). Due to a specific
category of juveniles, it is crucial to have such institution for post- penal
help because the possibilities for repeating a crime are higher if there is no
control over juveniles.
O. Personnel (Art. 81-87, the JDL Rules) that works with juveniles in
detention facilities, on any position, should be qualified; educated; trained
on youth psychology and international rules and human rights of the child;
with respect of juvenile’s dignity; to make sure that physical and mental
health will be protected and it should to be sufficient number of them.
There should be effort to make life in these institutions similar as much as
possible to the life outside of them.

It can be concluded that these comprehensive rules cover all human rights that
need to be respected in the case of detention of the juveniles. Also, the JDL Rules

91
contain most of the regulations from the European Prison Rules adapting them to the
specific rights and needs of the children (Vučković-Šahović, 2011:408).

United Nations Standard Minimum Rules for Non-Custodial

Measures

The rules were adopted by the Resolution 45/110 of the United Nations by the
General Assembly in 1990 and they are called Tokyo Rules.
Responding to juvenile crime on repressive ways and just locking juvenile up
are not effective in suppression of the juvenile crime. Therefore, the Tokyo Rules
promote the usage of the non-custodial measures for the criminal offenders in order to
reduce the use of prison punishment. Human rights, social justice and rehabilitation
need to be taken into consideration while proclaiming non-custodial measure.
The Tokyo Rules especially insist on establishment of the balance between “the
rights of individual offenders, the rights of victims, and the concern of society for
public safety and crime prevention” (Art. 1.4, Tokyo Rules).
In the Article 5.1 it announces that the police and the prosecution service should
be given power to discharge the offender or to proclaim alternatives if they believe that
it is not crucial to proceed. The non-custodial measures are listed in the Article 8.2
and they are: verbal sanctions, such as admonition, reprimand and warning;
conditional discharge; status penalties; economic sanctions and monetary penalties,
such as fines and day-fines; confiscation or an expropriation order; restitution to the
victim or a compensation order; suspended or deferred sentence; probation and judicial
supervision; a community service order; referral to an attendance centre; house arrest;
any other mode of non-institutional treatment and some combination of the measures
listed above. The Rules emphasize the big importance of the community and its role in
prevention and suppression of the juvenile delinquency so it encourages volunteers and
other community
92
resources to participate (Art. 17-18, Tokyo Rules).

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United Nations Guidelines for the Prevention of the Juvenile
Delinquency

This instrument was adopted by the United Nations General Assembly on

December 1990 and it is called Riyadh Guidelines. With numerous rules (66 in total),
due to a fact it is not legally binding instrument, it has a purpose to make an impact on
the Member States:
1. To occupy young people with useful social activities that can
contribute to their positive development;
2. To stimulate the healthy development of children;
3. Preventive programs should take into account the children's
contribution to society and enable their well-being;
4. To develop programs and services for young people in the community;
5. To avoid the punishment of the young people and include helping
young people to achieve different forms of education; take measures to
eliminate motive or the possibility of committing offenses and so on.
The stress is put on the family, education and the community of
young people. First, family, as the central surrounding for socialisation,
should be preserved with governmental and social efforts (Art. 12, Riyadh
Guidelines). Next, education is crucial category and in the Article 20 it is
emphasized that “governments are under an obligation to make public
education accessible to all young persons.” While particular attention to the
children who are at social risk is essential. Finally, community needs to
develop or strengthen services and programs “which respond to the special
needs, problems, interests and concerns of young persons and which offer
appropriate counselling and guidance to young persons and their families”
(Art. 45, Riyadh Guidelines). It can be concluded that all three categories
should cooperate in order to accomplish the goals, prevention of the juvenile
delinquency.

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 2. Council of Europe

Instruments from the Council of Europe provide with regional regulative for the
managing juvenile delinquency. It is important to highlight that these organisations
recognise the juvenile delinquency as a problem, apart from other things that are in its
focus and in order to deal with this, the Council of Europe adopted numerous
documents.
Also, there is significant number of documents that are relevant to juvenile
justice and bearing in mind that instruments from this organisation are oriented on
regional level, some main recommendations are going to be listed.

Recommendation on Social Reaction to Juvenile

Delinquency

The focus of this recommendation, adopted in 1987, is that all measures towards
juvenile offenders should have educational character due to a fact that juveniles are in
the process of a growth and development. There is a need to take that into account
while dealing with this specific category of people that has specific needs. It suggests
that both a social integration of juvenile delinquents and prevention of the offenses are
important. Prevention can be achieved by adopting policies that support young’s people
integration by assistance in schools or organisations dealing with young people.
Importance of mediation is proclaimed with the aim to prevent entering into
criminal justice system. However, when it comes to the prosecution, the rules needed to
be respected are listed.

Recommendation on Social Reaction to Juvenile Delinquency Among

Young People Coming from Migrant Families

Adoption of this recommendation in 1988 put the lights on the second

95
generation of migrants in Europe that deserve distinctive attention. It is essential to
provide possibilities for their integration into society.

In the focus of this recommendation are policies for social integration of people
who do not belong to national majority as well as adoption of legislations and practices
with no discriminatory treatment of non-nationals. Moreover, it is stressed out
promotion of their accession into society by gaining the nationality; participation in
facilities for young people; providing assistance to the family and providing them
opportunity to educate.
It can be concluded that these children are marginalised and for that reason there
are more possibilities for them to commit a crime and that it is crucial to integrate them
and provide them with possibilities not to be discriminated from majority in the Europe.

Recommendation on the Role of Early Psychosocial

Intervention in the Prevention of Criminality

Committee of Ministers adopted this Recommendation in 2000. It calls attention

to changes in crimes that young people commit and the fact that those who commit an
offense in younger age are most likely to become serious criminals. Children are in the
process of growth, mentally and physically, so there is a need to work on their
socialisation and in order to achieve that, inclusion of family and friends is crucial.
It defines prevention of criminality as “means, measures and activities aimed
specifically to reduce the likelihood of engaging persistent criminal behaviour in the
future as opposed to crime prevention by reducing the number and seriousness of
offences committed” (Rec. I). so, it put an accent to individual work with juveniles.
Member states should work on prevention of the crime and promotion of
protective factors with focus on the primary environment of child (family, school,
neighbourhood and so on) and all in the best interest of the child (Rec. II, 1.24). It is
recommended to identify and work with children in risk. The programs of prevention
and interventions should be implemented into national bodies (Rule IV (11)).
Moreover, the cooperation of educational, health, welfare centres, the police, voluntary
and private sector is important (Rec. IV (14)).

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Recommendation to Member States Concerning New Ways of Dealing
with Juvenile Delinquency and the Role of Juvenile Justice

This recommendation was adopted in 2003 and despite the fact that juvenile
delinquency is not climbing sharply it points out the weight of this phenomenon and
need for the new ways of dealing with it.
It is necessary to implement strategy based on community to prevent juvenile to
make offences with crucial actors such as family, school, neighbourhood and peers
(Rec II (2)). So, it is clear that cooperation between state and non-state actors is vital
thing.
For reaching the aim, the list of the new responses is given in the part
III with some main
points:
1. Maintenance of alternatives to prosecutions is the main thing;
2. The necessity of the juvenile needs to be respected, with the respect
of the level of his or her development;
3. Usefulness of involvement of the family and taking responsibilities;
usage of the mediation, restoration and reparation to the victim
whenever it is possible;
4. When it is determined that adult under the age of twenty-one are not
accountable for their acts as full adults, the procedure should be the
same as the one for juveniles;
5. Principle of proportionality is crucial with the shortest possible
proceeding;
6. While juveniles are in the custody, specifics of the group they belong
to such as their status, age, and special requirements should be
considered;
7. The custody period is determined not to be longer that six months;
8. Alternatives to custody should be in usage, for example placements
with relatives, foster families or other forms of supported
accommodation and
9. From the beginning of the sentence it is very important to start
working on the preparation for the proper life in healthy environment
after releasing from the institution. Education and employment of

97
 juvenile are crucial to adopt responsibilities ant to achieve re-
socialisation.
Kovačević concluded that “the new ways of combating juvenile delinquency require
constant modernisation of methods, but also recognition of risk factors such as social
marginalisation, school failure, negative influence of the media and others79”.

Recommendation on the European Rules for Juvenile Offenders

Subject to Sanctions or Measure

The Recommendation was adopted in 2008. In the preamble, it lists all main
international documents that regulate juvenile delinquency and recommends
implementation of the standards listed in them. Member States should improve
principles mentioned in these documents in their national legislation and practices.
The goal of document is to respect the rights and safety of juveniles who are
facing sanctions or measures. The best interest of the child should be considered while
pronouncing the sanctions and the sanctions should be proportional to the committed
crime, but according to the individual circumstances to every juvenile offender.

Guidelines of the Council of Europe on Child-Friendly

Justice

The Council of Europe adopted these guidelines to determine that the juvenile
justice is always friendly towards children “no matter who they are or what they have
done” (Council of Europe, 2011:7). Moreover, they are not focused only on juvenile
delinquency and juvenile delinquents, but also on proceeding that refers to divorce,
adoption, migration, violence.
The newest document is adopted in 2010 due to a gap in law and practice when
it comes to the right to a fair trial. All negative sides in the past affected the Member
States to make new guidelines due to “the need to enhance access to justice and
improve the treatment of children in judicial and non-judicial proceedings. Moreover,
document stresses out the importance of raising the knowledge and awareness of
professionals working with children in proceedings and also importance of adapted
training in order to guarantee the best interests of the child, and the good administration

79
Ibid
98
of justice80” (Council of Europe, 2011:38). Furthermore, in 2011 revised version was
released.
Processes that conduct before and during proceeding are defined in details.
Fundamental principles listed in the guidelines are: participation (rights to be informed,
consulted and involved); the best interest of the child; dignity of the child needs to be
respected; principle of non- discrimination on any ground and the principle of rule of
law (rights on fair trial, legal advice, to access to courts, the right to appeal, avoiding
any delay). Moreover, keeping child safe from harm and new victimisation is one of the
important conditions needed to be achieved.
The Guidelines provide comprehensive measures and instruments in order to
reformate the juvenile justice systems bearing in mind specific characteristics of
juveniles as special category.

3. European Union

When it comes to the EU, it is clear that juvenile delinquency is not in the focus
of the work of this organisation. The EU was established as economic organisation and
it was evolved into political one and until now has stabilised democracy and security in
Europe. Nevertheless, the EU pays attention to this negative phenomenon.
Documents adopted by the European Union are important for both Serbia and
Slovenia due to a fact that Serbia is a candidate for admission to the EU and Slovenia is
a Member State since 2004. Serbia tends to achieve all conditions in order to fulfil all
prerequisites for admission into the European Union. In that process, there is a need to
respect the rules and the laws of the EU. Furthermore, Slovenia as a Member State has
an obligation to harmonise their national legislation with European Union.

View on the Prevention of Juvenile Delinquency. Ways

of Dealing with Juvenile Delinquency and the Role of
the Juvenile Justice System in the European Union

The document was adopted by the European Economic and Social Committee
80
Council of Europe. (2011). Guidelines of the Committee of Ministers of the Council of Europe on Child-
friendly Justice (Explenatory Memorandum No. 5). Retrieved from https://rm.coe.int/168045f5a9
99
Resolution 2006/C 110/13 in 2006.
It expresses a common believe that, in order to combat the juvenile delinquency,
it is imperative to develop strategy in the EU. But it is hard because Member States
have different approaches to definition of juvenile delinquency, diverse juvenile justice
systems based on dissimilar models, punitive systems, and differences between the ages
of juvenile criminal responsibility.

The opinion lists the economic and socio-environment factors influencing

juvenile delinquency, such as a dysfunctional family, poverty that leads to
marginalisation, academic failure, unemployment, diverse media and violent content,
drugs and toxic substance, personality of the juvenile, failure of school to pass the
values. In order to fight with this, the strategy that needs to be developed as a main
guideline should be for the best interest of the child.
It points out that all documents adopted by the United Nations and the Council
of Europe (mentioned in previous pages), introduce the new model of the reaction on
the juvenile delinquency – responsibility model and that that model has been adopted
by numerous Member States in Europe.
Moreover, it stresses out the fact that good policies are focused on prevention
educational treatment in the community or centres and on integration of youth. Also,
young offenders are marginalised and it is essential to decrease this. But not just that,
disabled people, ethnic minorities, the elderly are also socially excluded.
It stressed out the necessity of the unity on the European level to combat the
juvenile delinquency. Minimum standards and guidelines between Member States
should be achieved within the juvenile justice policy.

Resolution on Juvenile Delinquency, the Role of

Women, the Family and Society

Resolution on juvenile Delinquency, the role of Women, the Family and Society
was adopted in 2007 by the European Parliament.
In Introduction Section A of Resolution is stressed out that the juvenile
delinquency is to a greater extent more dangerous than criminality of adult due to a fact
that it affects a particularly vulnerable section of the population during the formative
years of personal “development, exposing juveniles at a very early stage to the risk of

100
social exclusion and stigmatisation.”
Moreover, it pointed out that main factors leading to juvenile delinquency are:
failure of education systems to pass on social values, lack of appropriate model within
the family, poverty, social exclusion, racism and so on.

The EU calls for development of special national programs with the aim to
achieve rehabilitation and re-integration of the juvenile offenders into society. In other
words, it emphasizes the need to create the national strategies where the main role is
going to belong to the state, but also the regional and local authorities, civil society
organisation, family, school and neighbours with the accent on the securing financial
resources. Social inequalities and countering social exclusion and poverty are
imperative. Also, families, schools and society should work together to fight juvenile
delinquency.
Moreover, Member States should adopt minimum standards grounded on the
Beijing Rules, with the three pillars: prevention, judicial and extrajudicial measures and
social integration/re-integration (Art. 22).

Other international documents important for regulating juvenile justice system

There are significant number of international documents that represent secondary

source of law about execution of criminal sanctions towards juveniles such as:
1. The UN Charter,
2. International Covenant on Civil and Political Rights,
3. International Covenant on Economic, Social and Cultural Rights,
4. European Convention on the Exercise of Children's Rights,
5. Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment adopted by the UN,
6. European Convention for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment; adopted by Council of Europe,
7. Body of Principles for the Protection of All Persons under Any
Form of Detention or Imprisonment the UN,
8. CPT Standards, Council of Europe and many more.
101
 The Main Models of Reaction on Juvenile Delinquency

In modern societies, the goal of sanctions, which can be proclaimed to a juvenile,

is changed compared to the past. It is clear that nowadays, “the entire criminal justice
system is based on the principles of individualisation and reintegration, and the
enforcement of sanctions to mere retribution, return evil for evil, is nowhere proclaimed
as the goal itself that has a distinctive value”.
Depending on the public attitude and the decision makers there are different
approaches to the prevention and repression of juvenile delinquency. Two main
methods coexist with several methods that can be found in their boundaries and
represent subgroup of these two. It is a common belief that two basic models are
welfare and justice which represent opposite approaches. Next, the two methods that are
important and stand out from other are restorative justice model and neo- corrective
model. Some academics argue that there are more methods, so Škulić considers more
approaches:
1. Modified justice system – has elements typical for welfare method;
2. Participative model – characterized by principle of minimal
interventions and the main figures are subjects dealing with education
and communication;
3. Control of delinquency model – “model for protection of juvenile
delinquency” with strict reaction on juvenile crimes;
4. Corporative model – important role of the different governmental
bodies and social services dealing with juveniles with the main goal to
socialise minors;
5. Minimal intervention model – main goal is to avoid stigmatisation
of juveniles with replacement of criminal procedures with diversion
actions and to avoid formal punishments.
The common thing for all theoretical approaches is that “punishment cannot
just be the only measure of reaction to the committed crime, but also in many cases it
cannot achieve adequate results in achievement of foremost, protective function of the
criminal law”.

102
 It can be concluded that nowadays the models are not isolated one from each
other. Mixture of the models is common in the most of juvenile justice laws, and it,
depends on the political, economic, cultural practices, tradition in a country and a state
of the crime. In other words, if there is a common attitude towards juvenile criminal
as “juvenile crisis of children in conflict with law”, one model of control would be
used. On other hand, if there is dominant belief that these are the “acts from young
criminals”, different model would be used.
So, the states are not strictly following one of the proclaimed models in order to
find strategies for tackling juvenile crime successfully “which indicates that the
increase of more dangerous forms of criminal acts is concerning due to the age of
minors conducting criminal acts”.

1. Welfare model

This model is called “protective model” or “paternalistic model” due to the fact
that a legislators and judges are focused on the juvenile personality and the main goal is
to achieve re- education and rehabilitation of the juvenile. So, while choosing a sanction
for the juvenile, the court is taking into account all facts that can make a positive impact
on juvenile in order to change. In this model, the focus is on the best interest of the
child. According to Ignjatović the main principles are (2011:191):
1. While deciding, the type of the criminal act or the effects on the
victim are not taking into consideration;
2. The period of a sanction cannot be fixed, because it cannot be
determined for how long the process of re-education and rehabilitation
is going to last;
3. There is more possibility for them to be successful if they are held in
the institutions where the juveniles are separated from their current
environment;
4. The sanctions proclaims the court specialised for a juveniles and
5. It is not good to provide this category with a significant amount of
constitutional rights and guarantees because it can threaten the
program of re-education and rehabilitation.

103
 Juvenile and his re-socialisation is in the centre of this approach while victim is
in background. Important characteristic is that “the criminal sanctions are with
indefinite duration, their exact duration depends on achieved results in education with a
possibility to replace and end proclaimed corrective measure and that significantly
increases the active role of the court”.

104
 The focus is also on the juvenile personality and the fact that they are not mature so
it is easy to make an impact on them. So, environment (education, family, social, economic
situation) is a big factor in the process of committing a crime and it cannot be neglected.
The welfare model “incorporated the positivistic assumption that juvenile wrongdoing is the
product of social or environmental factors over which the young person has little or no
control, and maintains that young offenders should, accordingly, be helped rather than
punished”. It can be concluded that it is vital to apply measures in order to re-socialize
juvenile according to the needs, not to make a punishment proportional to the seriousness of
the offence.

Despite all critics it is clear that this method has a human treatment on juvenile
offenders, taking in to account all elements, and placing juvenile’s interest in focus. This
model dominates in numerous criminal systems in the world, not in its original form, but
modified with elements of the common justice model. So, elements of welfare model are
integrated in every system of juvenile delinquency.

2. Justice model

This model puts the committed crime and responsibility of juvenile in the centre and,
unlike the previous model, puts personal characteristics of the juvenile and his needs in a
second place. The final goal is to re-integrate successfully juvenile into society, without use
of rehabilitation. Moreover, it seeks to achieve criminal procedure similar to a classical one,
for adults, with special rules for juvenile. The right of juveniles needs to be the same as the
one for adult offenders, except the principle that protects the information about juvenile in
front of the court.

It is important for juvenile to be responsible for his/her acts, and while choosing a
sanction it must be proportional to the committed crime. Furthermore, duration of the
sanction has to be determined at the moment of pronouncement and proportional to the level
that juvenile deserves to be punished. The only omission for announcement of softer
punishment is allowed when the reintegration is demanded and it is justified by personal
characteristics of the offenders. In order to adjust sanctions, this method has proclaimed
numerous sanctions such as community work, a fine, a suspended sentence, limitation of
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movement with electronic monitoring and so on.
Prison sentence needs to be the las resort just for serious crimes. In order to reach a
restorative justice for easier crimes other measure should be used.
In most of the countries, this model is combined with welfare model and restorative
justice model. It started to be popular during the ’80, the period of expansion of the juvenile
delinquency with elements of severe acts, usage of drugs, organised crime.

3. Restorative Justice Model

Restorative justice is another way of reaction on the criminal behaviour and

Ignjatović proclaims that “restorative justice is based on the need to heal the damage caused
to social relationships as a result of the crime. Also, restorative justice can be seen as
response to a crime that is focused on repatriation of damage caused by criminal act to the
greatest possible extent”. Moreover, “it may be seen as criminal justice embedded in its
social context, with the accent on relationship with other components, rather than as a closed
system in isolation”81.
This model is focused on the relation offender-victim, not the offender-state. In other
words, dealing and solving a problem between juvenile offender and a victim through
procedure outside the court is in the centre. The problems can be solved with reparation with
a purpose to satisfy the victim, but also making an impact on juvenile to become responsible
for the act. The prerequisite for this approach is full acceptance of all sides to participate in
the process (offender, victim and social community).

Aim of restorative justice is to “make an offender social re-integrated” and

reconciliation of two sides. It can be achieved with mediation, through panel discussion with
juvenile offender, restorative meetings - family group conferencing, community
conferencing.

4. Neo-correctional model

“Zero tolerance” policy is the way of reacting when it comes to juvenile

81
F. Marshall, T. (1999). Restorative Justice: An Overview. London: Home Office Research Development and
Statistic Directorate. Retrieved from http://www.antoniocasella.eu/restorative/Marshall_1999-b.pdf
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delinquency with an accent on law and order. This method is similar to the justice model
due to the fact that minor is also considered to have the same responsibility for the
committed crime as adults. That follows certain obligations that need to be fulfilled by
juvenile. The main difference and the main goal of this model is to react fast on the juvenile
delinquency and quite often, the prison punishment is proclaimed in order to protect society
form delinquents.
The base of this model is quick and successful response to the delinquency and,
apart from minor responsibility, there is also responsibility of juvenile parents due to the
mistakes they made in education, and there is a responsibility towards both victim and
community.
In order to effectively respond to a crime, the decision was made to keep under a
control poor neighbourhoods and citizens with social problems, because they are the threat
to state security. However, it is important to emphasize that ideas of neo-correctional
method are not part of international documents, but regardless, the model exists.
It is clear that “neo-correctional model very remarkably demonstrates that the mere
control of minors and strict discipline, without going into the causes of criminal behaviour,
does not lead to results”

Juvenile delinquency exists as a severe problem in every country, and the same is
true of all nations. It must be stressed that the circumstances which lead to juvenile
delinquency are “rapid population growth, the unavailability of housing and support
services, poverty, unemployment and underemployment among youth, the decline in the
authority of local communities, overcrowding in poor urban areas, the disintegration of the
family, and ineffective educational systems”82.
Concern about juvenile delinquency is widely shared by state officials, by the public
and by scholars. The question that arises now is: how is it best to react when criminal acts
are committed by juveniles? Concurrently, the emphasis must remain towards preventing
juveniles from becoming repeat offenders and finding the best ways to achieve that.
It is widely acknowledged that juvenile justice systems should be separated from the
justice system for adults. Foremost, juvenile delinquents are entitled to the same rights as
adult offenders, such as freedom from torture and cruel, inhuman, or degrading treatment;
82
Department of Economic and Social Affairs, United Nations, 2004:189
107
presumption of innocence; freedom from retroactive prosecution; freedom from unlawful or
arbitrary deprivation of liberty: the right to an interpreter and many more83. On the other
hand, it is noticeable that the juvenile justice system also has some original and further
characteristics.
International organisations find juvenile delinquency a significant phenomenon and
stress the necessity for the prevention of delinquency among young people by providing
assistance to those in danger of committing offence. As a consequence, a considerable
number of international instruments have been adopted to point out main principles when it
comes to juvenile delinquency and outline necessary for their specific treatment.
Moreover, the convicted person can be an object of continued negative effects, such
as being separated from their family, termination of schooling, loss of their job, or facing
difficulties to find future employment. Furthermore, there is a possibility he or she will still
be seen as a criminal. In other words, juvenile sanctions that include deprivation of liberty,
in specific cases, can lead to the stigmatisation of young people after leaving these
institutions, leading to a harder life for the juvenile. Therefore, the states need to work on
the elimination of every kind of discrimination from this category.
Execution of sanctions, can result in adopting some negative patterns of behaviour.
The large numbers of prisoner populations, often much larger that optimal can mean that, a
"criminal infection" occurs, which increases the juvenile returning to criminality. Moreover,
ordering these sanctions can leave negative consequences regarding re-socialisation and re-
integration into society. This shows the importance of the diversion measures whenever
possible. But, it is crucial to evaluate every single case, due to a fact that the specific
circumstances of each offence are different. Ergo, it is of great importance to send juveniles
to one of these institutions in order to separate him from the current environment, or to
finish education and so on.

83
O’Connor, Rausch, Albrecht, & Klemencic, 2008:460
108
 CHAPTER - IV

JUVENILE LAWS IN INDIA

Introduction

In general it's accepted that early-stage mediation is that the best thanks to subsume
prevention Delinquency. During this procedure initial we have a tendency to get to
characterize such Juveniles and so offer them treatment. Need needs person, cluster and
totally different leveled endeavors to avoiding Juveniles from misusing the law. Moreover,
it tends to be accomplishing through the financial advancement, practiced making ready
programs, directions are the measures to stay the Juvenile from contribution in criminal and
illicit exercises. In use of Juvenile Justice Act, it's imperative for the specialists initial to
induce engaged with the Juvenile justice framework and build sturdy Union with society.
Nongovernmental organization and native communities' Union will likewise facilitate to

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keep the Delinquency. Government ought to supply significance to forcing, useful and long-
standing time programs for Juveniles in order that they will go back to their fearlessness and
feel persuaded to hitch customary of the overall public84.

By proclaiming Childs as particularly resource of the country, the national procedure on

Childs in 1974 well-kept that the social and customary improvement is that the sole risk
of the country and Nation has likewise offer adequate opportunities to Juveniles to their
mental, physical and social headway. Moreover, advance the Nation ought to in like manner
guarantee Childs against abuse, ignore, hardness and abuse. The socially in inverts Childs
Who fined yourself criminal/heretic are secured offices for instruction, practiced making
ready and restoration. This National Policy for youngsters in 1974 in like method contains
strategy for wonderful accent to each single Juvenile having a spot with the lot of sensitive
Sections to realize sq. with condition.
By uprightness of a substitute formulation and classified character, the probability of
Juvenile Justice is incomprehensibly not truly the image of the probability of This
National Policy Childs for Childs} in 1974 in like method contains system for gorgeous
supporter to every and each teenagers having a spot with the a lot of touchy Sections to
accomplish sq. with condition soundness intertwine a broad technique to superintend
manage the problems of heretic youngsters and people conversant in terrible direct treat
them through love, care, security, redoing and medical aid treatment. The JJ structure
provides high have to be compelled to decreasing the essential for Judicial mediations thus
on carry on an important Department from youths' cases from frightful impact of legislating,
management and analysis. Clarification for this unquestionable trait towards Childs is to
protect them from traditional tribunal methods, whereby reformatory contemplations beat
conscious contemplations. The Sixth world organization Congress on the interference of
Crime and therefore the Treatment of Offenders saw that "the probability of Justice at
the past stage (before the start of Delinquency) seldom features a judicial criticalness". It’s
essentially the probability of social and nice Justice. This fuses the devolution and,
even, weight of social commitments on the Child whereas within the unit of time showing
social group worry for him85.

The Nation owes a substitute Responsibility to Childs than to grown-ups. Beyond gathering

84
International Journal of Interdisciplinary and Multidisciplinary Studies (IJIMS), 2014, Vol 1, No.6, 64- 70.
85
Report of Sixth United Nations Congress on the Prevention of Crime and the Treatment of Offenders,
Caracas, Venezuela, 25 August-5 September, 1980, p.41.
110
of the National Policy for youngsters and going before execution of the Juvenile Justice Act,
1986 systems of laws connected with youths within the majority of the bits of the Nation.
Within the Nations and Sections wherever the Childs Act wasn't asked for or at no matter
purpose supported not well-kept, methodologies of the Code of atomic number criminal
Procedure 1973 Cr.PC related. The Childs Acts material within the sprawling leftovers of
the Sections was disengaged into portrayals. The elemental category solid the Childs Acts
Affirmed going before the Childs Act 1960, and therefore the alternative contained the
Childs Acts go starting there.

The benchmarks, strategy, and results characteristic with teens in like method vacillated
terribly below these frameworks of laws. The capabilities accomplished injurious treatment
being assigned to Childs living in varied bits of the Nation. A reprobate family of seventeen
years additionally met all wants forget native points of the Childs Act in Gujarat or State
however not thus in geographical section. A toddler whose guardians weren't ready take
his/her thought was united into the importance of rejected Childs by the Childs Act 1960
however not by the Childs Acts of Uttar Pradesh and Gujarat, acknowledging repudiating of
Nation care to them. in an exceedingly few Sections, reprobate teens may well be
condemned to death, in others they might be unbroken simply in important cases, and in
some extraordinary Sections imprisonment of Childs was judicial below any condition. The
within endeavored endeavors to realize consistency by beginning the Nations to vary their
youngsters Acts in equivalence with the Childs Act 1960. Simply Nation and Nation revised
their youngsters Acts to induce the position of Child timing with the Childs Act 1960.
Within by virtue of the started set up was duty-bound to stretch out the Childs Act 1960 to
the complete nation.

Updates knew regarding take away a little of the problem looked within the development of
the Childs Act 1960 by the Childs (Amendment) Act 1978. The constraint against the
closeness of a Judicial counsel before the capable ace was raised by morals of Juvenile
courts in setting of the keenness of the Gujarat court placing down a relative Procedure
within the Saurashtra youngsters Act. Structure was created for-between trade of delinquent
and expelled youths between the court and therefore the Child welfare board, if it absolutely
was found basic within the Nations of the case. The dynamic Act in like method enclosed
Procedures representational process spot of booming, match person and match institutional.
It equivalently matches keeping the Juveniles at an section of security and for setting them
below the thought of a match person. The Child's board was needed to be helped by a
111
primary array of 2 social specialists. Alternative youngsters Acts that had gotten a handle
on the course of action and systems of the Childs Act 1960 failed to be a part of the
developments displayed by the alteration Act.

The youngsters Act 1960 given systems for distinct treatment of nonreligious person and
non-criminal Childs through categorical Unions. It in like method underlined that the
Juveniles beneath unequivocal age (16 for energetic associates, eighteen for young women)
mustn't be administered by customary criminal courts and ought not to be sent to
detainment facilities. It likewise given to line of youngsters Welfare Board to manage non-
blasphemer teens. "Pre-adult Justice Act 1986" dislodged "Local

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youngsters Act, 1960" and Nation youngsters Acts. Regardless, the course of action for
institutional treatment primarily stayed same. The Nation Governments were needed to
make and carry on Juvenile homes for abused Juveniles and uncommon homes for
criminal Juveniles. In context on way reaching obligations and totally different
conventions and pointers of the world organisation to that India is in like method a
person, the Govt. of India bolstered Juvenile Justice (C&P) Act, 2000. Keeping seeable
however implausibly coherently basic thought was needed and a limit should be drawn
between the treatment of Juvenile in an exceedingly dangerous position with law and
people requiring care and confirmation, the Juvenile Justice (C&P) Act, 2000 created a
substitute Procedure of Justice affiliation. The Act to boot duty-bound productive
energy of accommodating social measures at family level what is a lot of at the
Community level.

The question getting on Determination

Age determination may be a controversial issue in Juvenile justice framework what is a

lot of, totally different cases are picked by the courts on this original scenario. regarding
Juvenile enabling in India, "a Juvenile may be a man Who has not finished eighteen
years old" and can be tried by the Juvenile Justice Act as a Juvenile beneath the age of
seven years and are allowed unfold security below Section eighty two of the IPC. The
target behind this is not to look at such Juvenile as a grown-up for his or her
criminal/unlawful exercises at any rate to vary and restore them, the topic getting on
assertion is blemished in lightweight of the route that There is no clearness within the
law on this issue. Without doubt, while not a doubt, even within the Indian judicial code
1860, packages eighty two and eighty three same that the Childs beneath the seven
years and no more than twelve years getting on, not be charged for his or her criminal
showcase. Here the interest develops that who can decide the age parcel they fall in?
Region 49(1) of the Juvenile Justice Act, 2000 and piece ninety four of the Juvenile
Justice (C&P) Act 2015 presents the Force on capable specialist or Board to choose if
the person brought before it's a toddler or not. The running with attestations ar
contemplated for the arrangement getting on insistence i.e the date of birth introduction
from the varsity or the tour support from the involved examination board, birth
affirmation issued by any practiced ace and just in case any of the on top of

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assertions aren't accessible, by then the age are duty-bound by activity take a look at
or another restorative take a look at86.

As indicated by Act there are explicit ways in which to subsume decide age of any
nonreligious person solitary, initial is account proof given by him or by therapeutic
(Examination) illustrate. The Supreme Court command in Jaya bone versus Home
Secretary, Government of Jharkhand "that the age as educated or duty-bound by
recuperating examination is not simple affirmation getting on of a person. it's
unimportant analysis of the knowledgeable and There is a foothold of two years may
well be on either side". In another driving case, Bhoop Ram versus Nation of UP, the
head court command "that if there ought to rise an occurrence of rivalry between story
check and validating report, the record affirmation are viewed as right". This prompts
the top that it must depart this world record confirmation to choose the age of any
criminal. Within the long-term a new concern climbs here in lightweight of the method
that to induce the record passed on is that the easiest things in our country. In reality,
even we won't believe medicative examination alone in lightweight of however it
absolutely was in like method command to not be hundred % unequivocal insistences
by pleasing execs. The Allahabad High Court's in its terribly own original demand
same that "a specialist is not for every scenario sensible". In Smt. Kamlesh and. versus
Nation of UP, the court well-kept that a specialist walker is slanted to concur with a
gathering that pulls in his/her affiliation. on these lines, a specialist is not frequently
real. Within the long-term, the interest rise that if age cannot be regulated by
mistreatment either story or useful confirmation, by then everything thought of what
got to maybe be possible? The Supreme Court in Babloo Passi versus Nation of
Jharkhand command that no settled customary had been set round the Act for the age
confirmation of a person and therefore the supplication of the Juvenile should be settled
on a choice regarding all things thought of alone validity. The therapeutic insistence
with relation to the age of a person is associate particularly satisfying coordinative part
however it is not instigating check and will be seen as close-by alternative relevant
verification.

Close by the confirmation getting on, the topic of the start once the age should be
viewed as has likewise enclosed conflict. In Umesh Chandra. versus State of
Rajasthan, it absolutely was command that "it is that the date of the offense that has got
86
The Juvenile Justice (care and Protection of children) Act, 2015
114
to be considered". Arnit Das versus Nation of Nation overruled the judgment
expression that the date of commission of offense is trivial and it's the date of obtaining
the charged the court that has got to be thought of. This was once more overruled in
Pratap Singh versus Nation of Jharkhand wherever the court command that the placing
back date for the insistence of the age of the Juvenile is that the date of associate
offense and not the date once he's created before the virtuoso or within the Court87.

NATIONAL POLICY AND THEME FOR JUVENILES

The National Policy for youngsters embraced by the Govt. of India on twenty two
August, 1974. As per it youngsters ar the leading resources of the country. During this
method, Children's comes find a necessary half in our national gets prepared for the
development of Childs and girls, so in future our Childs find you solid, taught,
physically and rationally match, galvanized and find you spirited subjects. Our purpose
is to administer reach with possibilities to the upliftment and improvement of all Childs
amid their Juvenile Period, and additionally try and scale back discrimination and
making certain social justice to all88. Therefore, following measures ought to be
undertaken for the attainment of those goals:
Comprehensive health programme

Requisite nutrition services to get rid of deficiencies within the diet of youngsters.

1. General improvement in medicative services and nourishment instruction of

eager and nursing moms.

2. Free and needed Education for all Childs up to the age of fourteen years.
Measures ought to be taken to decrease the larger wastage and stagnation in
faculties, particularly by ethicalness of young girls and youngsters of the
financially flimsier Sections.

3. Children who aren't in position to require full supported perspective of formal

college direction got to be bolstered with different types of preparing suitable
their basics.
4. Children ought to be secured against severe treatment and misuse. Shaver
87
Government of India, 'Supreme Court cases', In Jaya mala V. Hom Secretary, (2010) Bhoop Rain V.
state of UP case, (1989) BablooPassi and V. state of Jharkhand, (2010) In Umesh Chandra. V. state of
Rajastan, (2005) Arnit Das V. state of Bihar (2000)
88
National Policy for Children (1974).
115
 below fourteen years getting on will not be allowable to be busy with any
work and dangerous occupation.
5. Special care and treatment, making ready and rehabilitative changes ought to
lean to physically tried, genuinely aggravated or soundly ruined Childs.
6. Children ought to lean demand for security and lightening amidst torment or
trademark catastrophe.
7. Special tasks are nitty gritty to enforce and management the adept youths,
significantly those having a spot with the lot of fragile Sections of the general
population.
8. Recreational activities, as an example, physical preparing; social or coherent
activities are progressed in faculties, community centers and such
extraordinary foundations.
9. Special facilitate and comparable open entree ought to lean to all or any
Juveniles having a spot with the socially and financially successively around
Sections of the general population.
10. Facilities of steerage, capable preparing and reconstruction ought to lean to
socially hindered youngsters, Who have all over up being heretic or are
unnatural to require to asking or by and huge stuck in associate unfortunate
scenario with the target that they'll equally find yourself profitable nationals.

Interests of Childs ought to lean imperative plan in each and every real issue.

Family holding and care got to be refreshed to full conceivable outcomes for the
foremost ideal development and improvement of youths. In arrangement programs in
numerous Sections, want are given to programs characteristic with:

i. preventive and pushed bits of Child thriving;

ii. Nutrition for childs within the pre-school age;
iii. Education and making ready and progress of vagrant and poor Juveniles;
iv. Crèches and explicit operating environments for the care of Childs or slight
moms ; and
v. Special Care, direction, arrangement and recovery of physically tried Childs.

The Government of India planned in 1979, the National set up of Action in affirmation
of the International Year of the Child (WC). The set up imparted that the actual native
points of the affirmation of the International Year of the Child in India are as under:
116
 i. To endeavor deliberate endeavors to reduce the repeat of Child mortality by
giving affordable thriving comes and will check their encouraging wants.
ii. To advance system care associated designing regarding the main position of
the sound improvement of the young and an zealous family life because the
institution for the Child's security and flourishing.
iii. To engage unflawed psycho-social improvement of pre-school teens so as to
line them within the Nation of mind for tutoring by giving a system of
Balwadis/Anganwadis/Crèches/day-care focuses/nursery faculties.
iv. To make progress toward the speedy insistence of the target of way reaching
basic designing and to liberally diminish the rates of faculty drop-out.
v. To secure the chief benefits of Childs and to ensure them against lack of
regard, mercilessness, threats and mistreatment by progressing smart use of
existing solicitation and stirring up new ones wherever essential.
vi. To secure advantage of all Juveniles within the neediness packs had brought
into the planet no/after one Jan 1979 to open facilitate for his or her survival,
improvement and progress.

The procedure structure had perceived the running with principles:

i. The general purpose of International Year of the Child in India is "Achieving

the underprivileged Child".
ii. The WC ought not be obsessed as a passing framework. It got to be seen as a
spring board for zealous and proceeded with development amidst no matter is
left of the little bit of the century. The goals and centers as spelled out got to
by all odds be polished before the various years over.

iii. The accentuation amidst this era are on successors of logically sensitive bits of
Society, to be categorical, scheduled Castes, scheduled Tribes and totally
different hassle packs coordinated in nation regions and concrete ghettos.
Within this goal cluster, more and more discernible thought ought to be
offered on Child within the age get-together of 0-6 years, primary school
children as to boot pregnant and nursing moms.
iv. Since it'll be arduous to hide, amidst IYC, all Childs below flourishing and
sustenance programs, want got to lean to contemplate the wants of Childs
beneath the age of six years, pregnant and nursing moms.

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 v. During the IYC, an effort got to be created to diminish maternal and child
youth downfall rate by regarding five-hitter.

Theme for youngsters in want of Care and Protection

The GOI has represented a national envision for the welfare of Childs requiring care
and request. The target of theme is to develop and brace the open arrangement of
welfare relationship for sincere Childs with a conclusive focus to modify them as
traditional occupants within the general persons they need a spot with. The program for
the rationale sets ameliorator relationship of sustenance, shield, bits of covering, useful
thought and restorative relationship of bearing, prevocational and adept designing,
ready heading, satisfaction and social improvement and citizenship making ready.
Below this program, it's planned to use this institutions unbroken running by adamant
welfare Unions that have the probability and limit of increase their unions with the
assistance of help from Government. Apart from giving institutional unions, technique
is to boot planned within the program for giving Child care and assignment unions. The
program of unions that ar planned to be offered to youths at this foundations meld
physical and social thought, school, direction and recreational exercises and shut
family air. For the Childs some spot within the extent of twelve and eighteen years, the
program can be a part of prevocational direction, capable arrangement in varied
occupations and citizenship designing. The advantage of the place arrangement of the
Ministry of Labor, Government of India would be influenced accessible to Childs a
lot of to than fifteen years recent. The running with rules are upheld to those Childs
Who have accomplished the age of eighteen years, at any rate haven't however begun
winning a business and do not have a veritable spot to live:

A. On the off likelihood that undeniably settled youths (over eighteen years)
should be unbroken in Childs' homes while not another possibility, separate
Procedures for them would supply as hostile keeping them with logically
Juvenile Childs.
B. Uncommon care ought not out of the standard of young girls and every labor
got to be created to induce them married, self-governingly used or all around
settled suitably. They ought not to be sent removed from homes while not real
thought and fitting possibility.
C. Scholastically impossible Juveniles, paying very little temperament as to if
118
 juvenile colleagues or young girls, got to lean full likelihood to stay on within
the homes, hunt for once higher examinations and appreciate their most
outstanding farthest purpose.
D. Non-formal master making ready work environments as union and fix focuses
and age cum-arranging focuses, got to be the certified plunk to emForce such
teens to create nice living and stop to be dependent on homes.
E. The allow in-help ought to continue being given to the unions for discouraged
Childs quite eighteen years getting on.
F. Endeavors ought to continue being created to strategy the bread and butter of
the unhappy Childs with the goal that they find yourself self ward once they
win eighteen years recent. Augmentation got to lean simply within the most
exceptional cases and got to be the bottom needed for finishing the condition.
Survey of the institutions got to be done jerkily to stay up a key partition from
the questionable get by from Childs late years recent.

The theme makes the system of giving facilitate with the sort of stipends to existing
youth welfare unions within the basic stage. Combined facilitate with the type of
rehashing grants are given to the institutions for every traditional issue, as an example
Nourishment, dress, chemical, oil, Force and water charges, postage, stationery,
guidance, course books, practiced preparing, prosperity, amusement remuneration of
house mother, overseer, accomplice, etc. Methodology for rent is formed until the
unions ar in an exceedingly circumstance to make settlement. Wherever the unions
beginning at currently have their own one amongst a sort structures, the system for
lease will be used for facilitate and fixes to those structures. Non-repeating regular
payment is acceptable for progression of house and piece of furniture, hardware and
utensils. The offer are created accessible to operating environments that have as lately
winning concerning putting in place new customary of welfare relationship for Childs,
want are given to those Unions having branches in metropolitan urban Sections. The
affirmation of the affiliations is designed au fait the limit of those work environments
to persist through the responsibility of supporting the program financially.

The validation of Childs within the well-kept Juveniles homes would be created by
the running with criteria:

i. Children Who haven't got either guards or shut relations;

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 ii. Children of single parent families blocked from guaranteeing satisfactory
family holding thanks to death, section, constrainment of watchmen and
wherever the pay of the family is below Rs.500/ - reliably; and
iii. Children found with no home or any settled spot.
iv. The theme in like method expects to form youth care unions to Childs Who
find yourself discouraged at associate early age (underneath six years) and for
whose condition affirmation cannot be chop-chop managed. The theme is
smart for such acutely aware youth and family welfare Unions that have
developed their capacities within the field of Child improvement. The upsides
of the Child care program ar accessible within the metropolitan urban
communitys of city, Bombay, Calcutta and Madras what is a lot of
Nation/Union Nation capitals and obvious cities with land of one thing like
two lakhs. In very good cases the Section centers will be given even in cities
with lots of below 2 lakhs, if exceptional acutely aware Unions approach for
execution of the theme.

Theme of interference and management of Juvenile Social Mal Adjustment

i. With the final word objective of fulfilling the statutory duties of the Nation as
set down below the Juvenile Justice Act, 1986, a complete theme for the
intense execration of Juvenile social personality disorder is planned to be
displayed below the Seventh 5 Year set up. The theme has the running with
things:
ii. To suit full combination of the affiliations thought of below the Juvenile
Justice Act, 1986 in most of the Sections, and to confirm that no Juvenile
below any conditions place in jail.
iii. To build up a system with the need for free of charge treatment of non-
defector children checked below the Juvenile Justice Act, 1986 versus
delinquents at varied occasions of their doubt, managing and recovery.
iv. To grasp a lively modification within the Juvenile Justice edges passionate
about on the far side any doubt all around delineated least benchmarks.
v. To make system for an ideal use organize primarily based welfare operating
conditions in thought, security and dynamic of maladjusted Childs as thought
of within the Juvenile Justice Act, 1986.

120
 vi. To advance intentional action for the murdering development of Juvenile
social personality disorder and therefore the treatment and recovery of socially
maladjusted Juveniles".

Under the theme, "the Juvenile Justice framework is predicted to be created with
regards to the real soul of the new law, while not undermining the poise and privileges
of the Juvenile. associate economical labor are created to ensure that simply those
classifications of Juveniles ar ready through the formal framework comprising of the
police, courts and remedial organizations that could not be taken care of by the casual
group action systems within the family or the community. For this reason, the
administrations of the intentional welfare organizations are accustomed the foremost
extreme at totally different conditions of referral, treatment and restoration of
Juveniles, significantly with relation to non-delinquents. associate assortment of
choices together with Child care, support, probation and then forth are relied on, on a
selected premise. A compelling linkage are designed up with community primarily
based welfare foundations, in spite of whether or not unbroken running by deliberate
Unions or started below the overall shaver, welfare, by technique for allowing or
enfranchisement. During this appreciation, the organizations designed up below the set
up for the welfare of youngsters in want and Care and Protection by intentional offices
can likewise be used for the procedure of non-reprobate categories of Childs
returning astonishingly on the point of the law. Institutional care are used even as the
last live by amplifying the policies of acceptable decisions. Associate loads a lot of
noteworthy pressure are placed on personalized treatment of the Juvenile through a
program of study and conclusion, appropriate position, restorative instruction, skilled
making ready and social digestion. Clearly, high want would lean to the preparation
of Juvenile Justice Functionaries from the police, courts and restorative offices as to
boot of willful staff occupied with this field". As wants be, "the institutional and non-
institutional example of administrations below the Juvenile Justice Framework is
planned to be thus redesigned on render personalized care to the Juvenile with regards
to his identity characteristics and welfare wants. Satisfactory variety of Juvenile
Courts for delinquents and Juvenile Welfare Boards for non-delinquents returning
extraordinarily on the point of the Juvenile Justice Act 1986 is designed up by Nation
Governments and Union Nation Administrations. Amid their making ready, the non-
reprobate classifications of Childs are delayed severally from delinquents, ideally
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with persons or deliberate organizations to be perceived as 'spots of wellbeing'. Quite
far, these categories are treated by approved persons or Unions rather than the police.
For Juvenile delinquents hardware for study and finding are mentioned accessible by
gap additional objective reality homes to hide each one of the scene. The present
foundations set-up by Nation Govt.. what is a lot of, Union Nation Administrations are
updated supported acknowledged standards. On the far side what several would think
about attainable the homes for down and out Childs operating below the Ministry's
theme for the Welfare of youngsters in want of Care and Protection being dead through
deliberate offices are perceived for the care, treatment and recovery of non- reprobate
categories of Childs ready through Juvenile Justice Act 1986? Be that because it might,
additional institutions could be basic each below the Govt. and deliberate Unions, once
the Act is satisfactorily upheld. One next to the opposite, a customary program making
ready of functionaries of the Juvenile Justice framework and intentional Unions
occupied with this field are started through regime and Union Nation Administrations".
In operating up these affiliations, the measures cleared up within the Operations
Manual for youngsters Act are planned to be looked for once, with such a lot of
changes as found smart to native conditions.

Policy for youngsters in Conflict with Law

The substantive judicial code suggests a differential technique towards teens in setting
on their physical and mental obstructions. The Indian judicial code associate denounces
that "nothing is an offense that is finished by a young below seven years old",
associated additional that "nothing is an offense that is finished by a toddler over seven
years recent and below twelve, Who has not developed edible improvement of
discernment to censure the character and outcomes of his lead on it event". By one
another, the Code and clear laws exhibit a broad variety of acts against Childs as
offenses for the protection and welfare of Juveniles.
The criminal approach in relationship with teens is addressed by a differential
methodology for starter, subsiding and management below the code of Criminal
Procedure 1973. The Code provides that "any offense not indictable with death or
imprisonment perpetually, dedicated by any person Who at the date once he/she shows
up or brought below the watchful look of the court is a lot of young than sixteen years,
could be tried by the Court of a Chief Judicial justice, or by any court phenomenally
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enforced below the Childs Act 1960, or another law till additional notice operative
satisfying the treatment, making ready and recovery of Juvenile criminal social
occasions". The Central and Nation youngsters Act89 be a part of one amongst a sort
methodology for the treatment of teens on get, Bail, examination, preliminary and
trade. The request of restriction is meagerly used for Juvenile knaves. Immature in
danger social affairs within the age get-together of sixteen to twenty one years ar
overseen severally from grown-up bastards below the training school faculties Acts
asked for in 2 or 3 Nations. The Probation of Offenders Act 1958 spots restriction on
the suppression of Juvenile transgressors. As shown by it someone below twenty-one
years getting on found conscious of associate offense accountable with detainment (at
any rate not with restraint unendingly) wouldn't be sentenced to limitation; rather
he/she would be outfitted with the good thing about the Procedures contained within
the Probation of Offenders Act, 1958, if conditions do warrant his/her discharge
on post starter superintendence. the Childs Acts of assorted Nations law down associate
all out reasoning for dread, remand, and perception beside if there are motivations to
realize one thing apart from what is expected. In spite of once place in reformatory
affiliations, Juvenile in danger social affairs ar suitably separated from grown-up
knaves and showed loads of specific degrees of direction, arrangement and
personalized mending treatment.

The assessments of Juvenile Justice Philosophy are unquestionably wheat get into
totally different Nation-level teens Acts within the overall Procedures of the Indian
judicial code and therefore the Code of Criminal Procedure. The Childs Acts of
assorted Nations kicked off associate angle, institutional and non-institutional
thought, discharge on offer and medical aid. These institutions show the logic of
express treatment of teenagers by the police, a substitute starter and making ready of
Juveniles, game set up in frameworks of Juvenile courts, associate comprehensive
program of institutional and non-institutional treatment, a productive created effort
with cognizant welfare operating environments and a program of medical aid. the
alternatives hospitable Childs' court are: partaking the Juvenile to come back home
once course; managing the Child to be free on post groundwork superintendence and
anaesthetise the thought of gatekeepers; and dominant the Child to pay fine just in case
he's over fourteen years getting on and wins cash.
89
The Children Act, 1960 (Act No. 53 of 1986)
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So far the Juvenile Justice structure within the country had passionate about the
execution of the Childs Acts. The expertise of quite quite 20 years had planned to the
Govt. of India that the probability of relationship below the Childs Acts passed on to
fore a number of central insufficiencies like nonattendance of consistency within the
Procedures of the Childs Acts being dead in varied Nations, group action of clearly
set down least gauges for basic wants, living conditions and restorative unions for
Childs in Juvenile medicative institutions, and therefore the non-receptiveness of
unequivocal structure within the bigger a part of the Nations. The difficult issue
Sections were: lacking Section connexion (55 Nations still revealed), the live of
Juvenile/Childs courts primarily nothing, Child welfare sheets all around that actually
matters non-existent, Childs in unequivocal Nations still delayed in prisons, varieties
within the higher age in representational process the juvenile, the substance of
validating unions through and thru frail, inadequately organized employees and group
action of open interest.

After allocation of the National Policy for youngsters and going before endorsement
of the JJA, 1986 3 methods for laws connected with Childs in varied bits of the
country. Within the Nations and district wherever the Childs Act wasn't confirmed or at
no matter signalize too out, not finished, Procedures of the Code of Criminal Procedure
1973 (Cr. PC) connected. The Childs Acts material in no matter is left of the Sections
was isolated into 2 depictions. The essential depiction interweaved the Childs Acts
approved going before the Childs Act 1960, and therefore the alternative enclosed the
Childs Acts go starting there.

The benchmarks, strategy, and results characteristic with Juveniles to boot separated
considerably below these 3 ways of laws. The capabilities accomplished one-sided
treatment being coursed to teens living in varied bits of the Nation. A criminal
successors of seventeen years was had all the elemental characteristics for the upsides
of the Childs Act in Gujarat or State however not thus in geographical section. A
toddler whose gatekeepers weren't adept take his/her thought was joined into the
noteworthiness of abused Juveniles by the Childs Act 1960 at any rate not by the
Childs Acts of Uttar Pradesh and Gujarat, acknowledging refusal of Nation care to
them. In 2 or 3 Sections, reprobate teens may well be condemned to death, in others
they might be unbroken simply in exceptional cases, and in some uncommon Sections
repression of Childs was judicial below any condition. The center tried endeavors to
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acknowledge consistency by causing the Nations to rethink their youngsters Acts in
Issue only with the Childs Act 1960. simply Nation and Nation revived their
youngsters Acts to induce the noteworthiness of youth understanding with the Childs
Act 1960. The constitution duty-bound within to stretch out the Childs Act 1960 to
the complete nation.

Rectifications knew regarding take away a vicinity of the problem looked within the
endeavor of the Childs Act 1960 by the Childs (Amendment) Act 1978. The
renouncing against the closeness of a Judicial promoter before the adept
knowledgeable was raised in lightweight of Juvenile courts in setting of the keenness
of the Gujarat court placing down a close-by Procedure within the Saurashtra
youngsters Act. Framework was created for-between trade of criminal and unemployed
children between the court and therefore the Child welfare board, if it absolutely was
found basic within the Nations of the case. The dynamic Act in like manner
enclosed Procedures portraying 'spot of flourishing, match person and match
institutional. It apart from duty-bound keeping the Childs at an section of security and
for golf shot them below the thought of a match person. The Childs court was needed
to be helped by a principle form of social specialists. Alternative youngsters Acts
that had gotten a handle on the sport set up and frameworks of the Childs Act 1960
failed to be a part of the developments given by the modification Act.

JUVENILE JUSTICE ACT, 1986

The Juvenile Justice Act 1986 incontestable an even dependable structure for Childs
from two Oct 1987 for the entire of India, aside from the Nation of Jammu and
geographic region. The court Act was operative within the Nation of Jammu and
geographic region (J&K) until the passing of the J&K youngsters Act 1970.
Regardless, the J&K youngsters Act 1970 was dead simply within the Sections of
Jammu and Srinagar since sixteen Oct 1973. It had systems like those of the Childs Act
1960 as they were going before 1978. The Jammu and geographic region Juvenile
Justice Act one997 (Act VIII of 1997) dislodged each the sooner Acts with its
endorsement within the entire Nation on 1 Gregorian calendar month 1998. It joins
the bulk of the Procedures of the Juvenile Justice Act 1986. The Juvenile Justice Act,
1986 snug an even approval with where for the duration of the India. The JJA being
uniform and non-remedial foundation, it discharged totally different bothers that had
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created in lightweight of nonattendance of consistency.

Administration of Juvenile Justice.

Something and functions behind the Juvenile Justice Bill was "to bring the task of
Juvenile Justice System within the nation in consistence with the world organisation
customary Minimum Rules for the Administration of Juvenile Justice (Beijing Rules)".
whereas putting in place Juvenile Justice Act 1986, the Parliament practiced its Force
given to that by Article 253 of the Constitution, to form any law for the entire or a part
of the country for finishing a general assertion, custom, or call, the JJA created stress
with the criminal and removed Juveniles where for the duration of the country. The
endorsing itself, regardless, failed to stamp associate adjustment within the procedure
characteristic with the affiliations, unions, and exercises to direct reprobate and abused
Childs.

The developments created within the JJA failed to mirror any wonderful capability
either within the set up or the methodology towards reprobate and unnoticed Childs,
and it absolutely was a virtual re-endorsement of the Childs Act 1960. on the point of
subbing the word 'Pre-adult' with 'Child', the JJA had created changes within the
significance of unnoticed Juvenile, substituted the methods characteristic with
medications and after-care, and showed 5 new ways. The position of 'disregarded'
Child within the JJA separated in unequivocal regards from that within the youngsters
Act 1960. All told honesty, the definition has aroused being a lot of expansive than that
below the Childs Act 1960.

By virtue of progression within the noteworthiness of 'calm' to 'narcotic medicine' and

Psychotropic substances' the procedure for exchange of Childs subject to narcotic
prescriptions and mind-expanding substances to a fitting treatment focus had been
incorporated in Section forty eight of the Juvenile Justice Act, that acknowledged fast
increase within the issue of unlawful drug use among Childs and Juvenile persons.
Fragment twelve of the Juvenile Justice Act characteristic with once thought was
surprisingly dynamically convoluted associated agitated off the bulk of the problems
that went into the event of an intensive course of action for after-care. Regardless, the
procedure, as was earlier what is more, failed to build medical aid needed and left it to
be managed by basics to be created below the Juvenile Justice Act. Piece fifty two of
the Juvenile Justice Act mirrored the confirmation of the elemental for a substitute set
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one thing aside for the welfare and recovery of the Childs managed there under. In any
case, the Procedure neither created the formation of such a spare needed nor
incontestable the Nation's guarantee to that. Territories fifty three and fifty four of the
JJA given to constitution of a bulletin board and arrangement of guests for institutions.
The bulletin board was to set up the activities of assorted Unions connected with doing
the objectives of the JJA, to grow such unions as indicated by any Section-express
necessities, and to assemble cash connected, material, and HR. Guests were needed to
be distributed for every home. The homes would have aroused being unquestionable to
society by the arrangement of guests Who may have gone regarding as spokespersons
for the one thing apart from what is expected 'out of the image and so impertinent of
sight (maybe out of psyche in like way) Childs at totally different structure within and
out of doors those homes. The constitution of the bulletin board and trip of that
guests, as an oversized portion of trade system, was left to the reasonableness of the
regime. Pre-adult Justice Act 1986 showed some certified changes within the
regularizing structure of the JJS in India. These developments included:

i. A standardized significance of Juvenile for the entire country;

ii. A more and more broad employment given to NGO's;
iii. Prohibition on management of Juveniles below all conditions; and

The JJA determined the Juveniles who were within its zone. below Juvenile Justice
Act, 1986 Boys a lot of energetic than sixteen years associated young ladies a lot of
Juvenile than eighteen years fell within the Section of the JJA if they were found to
possess shown an offense or were pained. Wild children may in like method be brought
within the Section of the JJA once thus brought by their persons or guardians. Thus
Procedures for taking their charge, settlement of their issue and pre and post validation
care and once thought were created. Police people and cognizant Unions Affirmed in
such method, may bring the nonreligious person and exhausted children viably capable
knowledgeable. Here masterminded professional inferred "The Juvenile Court"
regarding criminal Juveniles and "The Juvenile Welfare Board" on pained Childs, and
it additionally joined the officers picked in Section 7(2) of the JJA.

The capable ace was needed to carry basic enquiry to choose if the person brought
before it absolutely was a toddler and whether or not she/he was delinquent or pained
and given this can be substantial, to pass authentic requests in relationship with
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her/him. The reprobate Juvenile "whether charged for a bailable or non bailable
offense, paying very little heed to something contained in atomic number 24.P.C. of
1973 or another law for the present dead, was to be discharged on Bail adjacent to
wherever his discharge was likely to amass him Union with any best-known criminal
or his discharge would trounce the terminations of Justice". On the off likelihood that
within the event that the Juvenile wasn't free on Bail, by then he ought to be sent to
affirmation home or spot of security. within the wake of finishing of intrigue, the
skillful professional was Affirmed to mastermind touching base of renegade Juveniles
once due censure or on post groundwork supervision; to their condition below the
thought of their persons or guards, match person or match foundation; and demand a
fine if obtaining or persistently fourteen years of age; or constrainment in exceptional
home below the Act. A removed Juvenile may well be anaesthetising the thought of
their parent or guardian, match person or match Union, or in an exceedingly Juvenile
home.

The JJA duty-bound 3 Procedures of homes for keeping Childs, Associate Observation
Home was to be created or seen for keeping Juveniles within the thick of the pendency
of their structures on the point of on the off likelihood that they were unbroken with
their persons. A Juvenile Home was to be created or seen for cabin rejected Childs
associated a new home for renegade Juveniles. The observation homes were needed to
manage the short wants of the Childs, whereas the opposite 2 groupings of homes were
to administer care and workplaces to development on an entire course of action
premise.

Immature Justice Act matches "only a solitary vitality to the session's court against
associate enthusiasm of the precocious pro". In any case, no intrigue may well be
drawn against a finding that the Juvenile wasn't exhausted. The court of revisional
Force and it may need the records of the methods to satisfy it regarding the Judiciality
or passableness of soliciting for created by the match knowledgeable or the Sessions
Court. There was Procedure for creating plans, activities and measures for medical aid
of managed Childs. The controlled teens may well be prohibitively or unambiguously
discharged earlier than instructed by the precocious ace or place out on surrender.

THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN)

ACT, 2000.
128
The JJ (C&P) Act, 2000 was gone along Parliament and has been approved since lst
Gregorian calendar month 2001 within the whole of India beside the Nation of J&K.
On returning into Force; the JJ (C8cP) Act has born and uprooted the JJA. The JJ
(C&P) Act has been musical group expressly in request of India's help of the United
Nations Convention on Rights of Child and alternative basic sweeping instrument. The
Act was passed keeping seeable the checked Procedure and customs on Child rights,
within the running with terms:-

The Constitution below a number of Procedures, together with framework (3) of article
fifteen, stipulations (e) and (f) of article thirty-nine, articles forty five and forty seven,
drive on the Nation a central obligation of making certain that the majority of the wants
of Childs ar met which their basic human rights ar altogether checked. the overall
Assembly of the world organisation has understood the Convention on the Rights of
the Child in Nov, 1989. the connection of India has bore witness to the Convention on
the eleventh Dec, 1992 and afterward the affiliation remedied this governing body
about Juveniles considering the measures got a handle on within the Convention on the
Rights of the Child, the world organisation customary Minimum Rules for the
Administration of Juvenile Justice, 1985 (The Peiping Rules), the world organisation
Rules for the Protection of Juveniles empty their Liberty (1990), and every one
alternative basic international instruments.

The JJA (C& P) Act applies to people who are a lot of Juvenile than eighteen years and
that they ar inexplicit as Juveniles or Juveniles. 'Juvenile' proposes Childs well-kept to
possess shown associate offense. 'Juvenile' cements the general public who requiring
care and affirmation. Shocking note is also taken of the method that each energetic
associates and young ladies Who haven't completed the age of eighteen years are
incorporated within the section of the JJ (C&P) Act. The adept professional to
superintend 'Pre-adult battling with law' is that the Juvenile Justice (Board) and Childs
requiring care and protection' is that the Child welfare alerted grouping.

The Board can fuse official and 2 social managers, one whom are a fille. The Principal
justice ought to have nice learning or preparing in Child mind science and Child
welfare and therefore the social professional are needed to possess been adequately
connected with progress heading or welfare activity characteristic with the Childs for
no below seven years and will have post affected direction in welfare work, flourishing

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arrangement, neural structure science, youth improvement or another human science
discipline. The constitution of the Board below the JJ (C&P) Act isolates on a really
basic level from the court below the JJA. The social managers, Who were needed to
assist the officer below the JJA, have currently been created little bit of the Board. This
Procedure, at no matter purpose dead in letter and soul, will modification over the real
and express nature of the frameworks of the Board into thought and welfare
techniques. The closeness of the officer is important for positive character of the case,
at any rate the case itself is to be picked by larger half. On associate astoundingly basic
activity, it prescribes that the supposition of the 2 social bosses along can beat the
assessment of the decide. it's crucial, likewise, that the 2 social authorities really be
named to the Board. the 2 ought to likewise guarantee their center on the date of
definitive exchange for each circumstance to supply result to the present mammoth
modification within the strategy of the JJ (C&P) Act. nonetheless, as a results of
nonattendance of worry of presidency Juvenile Justice Board does not have qualified
persons picked as needed below the law.

JJ(C&P) Act, 2000 has in like method not delineated the terms 'care', 'confirmation
treatment, 'improvement', and 'recuperation' nor were they pictured by the JJA. These
terms, regardless, is also fathomed by regard to the declarations within the National
Policy and alternative connected plans. Henceforth, care ought to be a part of the
survival wants of Childs, that is, agreeable sustenance, bits of covering, and house.
They got to be secured against lack of regard, mercilessness, and misuse. ways got to
be created for ensured undertakings for rising the prompt and perspective of the
nonreligious person Childs. Such endeavors got to opt for allowing in Juveniles the
estimations of reliability and hopeful distance with the target that they find yourself
being uncommon and sound national. Measures basic for his or her all around headway
and improvement got to be created little bit of the Juvenile Justice Structures and tries.
The theme for the Welfare of youngsters in want of Care and Protection considers
recovery way as amelioratory relationship of sustenance, shield, and items of covering,
remedial and ace preparing, redirection and social improvement, and citizenship course
to form the teenagers, once they develop, work commendable.

The Child Welfare Committee is to contain 5 persons, one amongst who is to be a

person associated another as a knowledgeable on problems regarding Juveniles. Its

130
origin can have the Forces given by the atomic number CR.PC on a metropolitan or
Judicial Justice. It’s displayed that in setting of this statutory vesting of Forces, There is
no demand for giving the Forces initially as is needed by the atomic number CR.PC.
Instead of the JJA, the JJ (C&P) Act doesn't decide any pro/body that will coordinate
Childs or Juveniles while not a board or a board. Thus there should be, come back
what might breathtakingly, a board and a notice function to execute and end the
demand and Procedures of the show that has profitable Procedure for Juveniles.

The JJ (C&P) Act 2000 and rules created there below in 2007 offer that every one
enthusiasm below the JJ(C&P) Act ought to be done within an Period of 4 months
extendible by 2 months in certifiable offenses. Within the event that there got to
emerge a happening of spare offenses guilty with fine up to 1000/ - merely, the police
might get rid of the case at the police central station it. On the off likelihood that there
ought to rise a happening of non-asserted offenses unpardonable with suppression as
long as seven years Juvenile will be gotten simply in case it's essential in lightweight of
a real worry for Juvenile and in case of veritable offense indictable with detainment for
quite seven years, a Juvenile will be gotten. Regardless, he cannot be sure, confirmed
and fettered. No FIR or police blotter is needed if there got to build up a happening of
non authentic offense and therefore the police might record the data simply in their
general farm. A social institution report, Nations of nervousness and offense in any
case, ar needed to be submitted to the board before initial hearing. The ready
professional must hunt for once the intrigue structure in Juvenile case. No intrigue lies
against a finding that the Child failed to need associatey Nation care or had not shown
an offense. In varied cases, one intrigue overforces the court of sessions and therefore
the court might practise its ability of modification nonetheless.
i. To acknowledge responsibility of teens confirmed below the JJ (C&P) Act,
2000 unambiguously, associate expansive form of person, explicitly, the
police, Community specialists, non-definitive Unions, embraced persons or on
the opposite hand the Childs themselves has been acknowledged below the
Act. There has been a basic modification within the activity and obligation of
the police. Every police home base is starting at currently needed to possess
one thing like one police particularly coordinated to coordinate Juveniles
battling with law and what is a lot of those requiring care and security. Each
single such police can started the exceptional Juvenile unit in every Section.
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 Usage of this Procedure goes to the bottom of the operating of the JJ(C&P)
Act, 2000. The obstruction of keeping Childs in an exceedingly police home
base below any condition below the Juvenile Justice Act has been substituted
by denial against keeping them within the police stun up as it has been same.
No Procedure bars the keeping of even young ladies recognized Responsibility of
below the Act in an exceedingly police home base and this could activate distinctive
problems particularly with relation to the safety of young ladies thus unbroken.
ii. The JJ (C&P) Act, 2000 continues having the three-level personal occasion of
the JJA, regardless certifications non-correspondence between the 2 categories
of Childs despite within the thick of the pendency of their procedures
beginning at currently the match ace. teens homes, paying very little notice as
to if started or seen by the regime, have the Responsibility of overseeing
Childs requiring care and confirmation within the thick of the pendency of
their frameworks beginning at currently the notice cluster and additionally
once exchange, if thus asked. Affirmation homes ar needed to superintend
Juveniles battling with law within the thick of, the pendency of their cases
beginning at currently the Board and nice faculties to induce them once
exchange, once thus created. A juvenile is also unbroken with the parent or
watcher apart from within the thick of the pendency of systems at no matter
purpose found fitting. regarding Childs requiring care and insistence, the JJ
(C&P) Act, 2000 provides that if they need no family, they'll be allowed to
stay in house home until they're modified or they win the age of eighteen. The
JJ(C&P) Act 2000 has disposed of the Procedure of the JJA that emforceed a
court to trade matters passed on before it to the Juvenile welfare board and
therefore the associate alternate method. Distinctive decisions are displayed
within the sales which may be passed on teens within the question with law or
those found to possess introduced associate offense. The solicitations which
might be passed ar in keeping with the accompanying:
i. Allowed to travel their totally different homes once rebuke and directive to
each the parent and therefore the youth.
ii. Increase in enthusiasm of Juvenile in cluster organizing.
iii. Request to perform prepare advantage (serving more and more settled being
created home, nearing to department of local government, serving to in
workplace and social disabled Childs, etc.
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iv. Order the parent or the Juvenile to pay fine, if is quite fourteen years getting
on and obtaining (But cannot be sent him to stay in default of little bit of fine)

133
 v. Release on post groundwork superintendence below the thought of parent,
gatekeeper, or alternative match person, with or while not surety, for no more
than 3 years.
vi. Release on post basic superintendence permanently lead below the thought of
a match Union for no more than 3 years.
vii. Causation to associate uncommon home for no more than 3 years.
viii. Guiding of the Juveniles associated their people/watches has been created
basic to an enthusiasm of unharness once steerage or censure. Gathering
prompting, prepare advantage, weight of fine on the parent, is that the new
measures shown by the JJ (C&P) Act. a toddler found to possess shown
associate offense cannot be sentenced to death or given life confinement or
targeting jail in default of fragment of fine or mobilization security. A Juvenile
cannot be sent to serve a term of jail even once conviction.
ix. As to requiring Care and Protection the JJ (C&P) Act has united distinctive
new measures for managing all Childs (tallying Juveniles) went for his or her
recovery and reintegration within the open field. The foremost basic among
them is alternative. The JJ (C&P) Act sees that the key obligation of
overseeing Childs lies with their family. Once a veritable examination, a
juvenile falling within the Procedures of the JJ (C&P) Act, is also accounted
for open for gathering and given in confirmation. A Child, self-administering
of its faith and up to the age of eighteen years, is also given in game decide to
guards paying very little relation to their faith and therefore the variety and sex
of any living customary Childs. This Procedure has clearing leads to
confirming family look after children past the concealments duty-bound by the
Hindu Adoption and Maintenance Act.

Procedures about Child look after Juveniles whereas they're sitting tight for a family
or returning to their own special extraordinary family is another effort below the JJ
(C&P) Act at keeping Childs in an exceedingly family circumstance as hostile Nation-
run foundations. The Procedures about support suit tremendous facilitate to families
and foundations in Childs' capability building. Within the long-term the Child is also
given a gathering below JJ(C and P) Act, 2000 to paying very little identity to the
quantity or sex of living customary Childs within the family. System for Child care is

134
there for brief and enlarged Period until the Juvenile come back to his family or a
family all around found to administer extra help concerning remedial bearing support
program ar in like method unreal.

SPECIAL OPTIONS OF THE JUVENILE JUSTICE (CARE AND

PROTECTION OF CHILDREN) ACT, 2000

The JJA had joined distinctive Procedures and models for making certain extra care
and protection to heretic and unnoticed Childs for his or her recovery within the open
field. Those original Procedures and models were in Issueony with the Peiping Rules.
the fundamental customary hid all of those Procedures was care, confirmation, and
non-discipline of Childs oversaw below the JJA. The going with options of the JJA that
are combined within the JJ (C&P) Act, 2000 to boot.

Continuation of Inquiry

The JJ (C&P) Act, 2000 makes Procedure for continuation of enthusiasm for Union
with a person Who stops to be a Juvenile over the extent of intrigue. Essential
guideline is that the Childs cannot be attributed with a in proportion to part of mens-
rea as adults, and in lightweight of their mental time of life need protection against the
conceivable aftereffect of their awry showings. the help doesn't lose its Force simply
in lightweight of the route that with the advancement of your time the person, Who was
a toddler at the season of commission of the offense, stops to be thus at the season of
constructive deals. Offers of the match ace aren't vitiated by a ensuant affirmation that
the person oversaw below its Procedures wasn't a Juvenile. The age, as recorded by
the proficient professional once due intrigue, is regarded to be the ensured age of the
person with a whole focus of the JJ(C&P) Act.

Notwithstanding the method that the Juvenile crossed the age of eighteen years within
the thick of intrigue the keenness on such a Juvenile should be continuing seeing him
Juvenile because the endorsement has been begun thus on guarantee the Childs Who by
morals of their Juvenile age weren't precocious handle the results of their wrong shows.

The Supreme Court and court have gone well past whereas enforcing the top side of
this Act to the Juveniles whose cases had beginning late been disposed of by the court

135
or a general court, they being quite sixteen years getting on and not a Juvenile below
1986 Act. result of the revive of Sections 2(1), 7A, twenty and sixty four Juvenile
Justice (Care and Protection of Children) Act, 2000 of every 2006 is that paying very
little relation to whether or not the Juvenile has ceased to be thus on one.4.2001, still he
are thought of as a Juvenile just in case "he was beneath eighteen years getting on on
the date of commission of offense".

Essential date for affirmation of pre-adulthood is that the date of offense, gave the
person had not completed eighteen years getting on as at the foremost recent the date of
begin of Act for instance 1.4.2001. Within the finish associate instance of pre-
adulthood will be raised below the cautious look of any court at any stage even once
clear exchange of the case and such case are picked by the court within the wake of
putting up with confirmation as incontestable by the Procedures of the Act and Rules.
Regardless, just in case of a framework with offense the age of the Juvenile in
Delinquency ought to be settled with regard to the date on that the offense is alleged
to possess been given by the charged90.
Special Provision of Bail

The JJ (C&P) Act, 2000 makes Procedure for continuation of enthusiasm for Union
with a person Who stops to be a Juvenile over the extent of intrigue. Basic guideline
is that the Childs cannot be attributed with a in proportion to part of mens-rea as adults,
and in lightweight of their mental time of life need protection against the conceivable
consequence of their crooked showings. the help doesn't lose its Force simply in
lightweight of the route that with the development of your time the person, Who was a
toddler at the season of commission of the offense, stops to be thus at the season of
constructive deals. Offers of the practiced ace aren't vitiated by a ensuing affirmation
that the person oversaw below its Procedures wasn't a Juvenile. The age, as recorded
by the proficient knowledgeable once due intrigue, is regarded to be the ensured age of
the person with a conclusive focus of the JJ(C&P) Act.

Notwithstanding the method that the Juvenile crossed the age of eighteen years within
the thick of intrigue the keenness on such a Juvenile should be continuing seeing him
Juvenile because the endorsement has been begun thus on guarantee the Childs Who
by morals of their Juvenile age weren't proficient handle the results of their wrong

90
VimalChadha v. VikasChoudhary, 2008 (8) SCALE 608: 2008 (9) SCR 911
136
shows.

The Supreme Court and court have gone well past whereas enforcing the good thing
about this Act to the Juveniles whose cases had beginning late been disposed of by the
court or a general court, they being quite sixteen years getting on and not a Juvenile
below 1986 Act. result of the revive of Sections 2(1), 7A, twenty and sixty four
Juvenile Justice (Care and Protection of Children) Act, 2000 of every 2006 is that
paying very little relation to whether or not the Juvenile has ceased to be thus on
one.4.2001, still he are thought of as a Juvenile just in case "he was beneath eighteen
years getting on on the date of commission of offense".
Essential date for National of pre-adulthood is that the date of offense, gave the person
had not completed eighteen years getting on as at the foremost recent the date of begin
of Act for instance 01.4.2001. Within the finish associate instance of pre- adulthood
will be raised below the careful look of any court at any stage even once clear
exchange of the case and such case are picked by the court within the wake of putting
up with verification as incontestable by the Procedures of the Act and Rules.
Regardless, just in case of a framework with offense the age of the Juvenile in
Delinquency ought to be settled with regard to the date on that the offense is alleged
to possess been given by the charged In Manmohan Singh versus Nation of Punjab91’
and Manoj alias Kali vs. State (India)92, it's been command that a Juvenile should be
free on Bail mandatorily next to if uncommon cases cut get into Section twelve ar
created that ought to be developed on some material/confirmation accessible on record.
With the certified objective of Bail, see mentioned by the court in Abdul Rab versus
Nation of Nation is that a by all appearances satisfaction of Nation subject to raise
arouse regarding age on the date of offense is associate adequate ground for enforcing
Bail to the Juvenile. Ace Niku Chaubey versus Nation (India) and Anand Vishal
Khujur versus Nation of Jharkhand93 are the cases whereby it's been created
unambiguously clear that "the nature and gravity of offense is not one amongst the
conditions on that Bail will be declined to a Juvenile. The disclaimer of surrender
the bottom of culminations of Justice being vanquished should be thought of regarding
the welfare of the Juvenile94".

91
(2004) 136 PLR 497
92
2008 (12) SCALE 359
93
2008 (3) JCR 488 Jhr
94
Master Abhishek (Minor) v. State (Delhi), 2005 VI AD Del. 18
137
Sometimes falling below the uncommon cases cut get into Section twelve, Bail to the
Juvenile will be cannot, wherever scrutinized was supposedly occupied with stealing
rehearses and there was validity of his being connexion the pack and continuance the
activities at no matter purpose free on Bail weren't duty-bound, he was command not
match the bill for Bail. protect to a Juvenile was denied for one more circumstance
wherever there was probability that once his unharness on Bail the condemned would
once more exercise with alternative adult co-charged Who was meantime escaping
and it may induce new and mental hazard and would in like method pound fulfillments
of Justice. The Bail will be sanely denied to suspect if it might open him to ethical and
mental hazard as was for this condition wherever the family sent the Child beneath
sixteen years getting on to fill in additionally requested wager and therefore the
Juvenile took the hurt person to his home and dead ambush apparent criminal affinity
in him. In such a condition it absolutely was command that at no matter purpose free
on Bail, he are conversant in nice and mental risk.

CONSTITUTION OF COMPETENT AUTHORITY

There are for the foremost half specialists to subsume the "Juvenile in battle with law"
and "youth requiring care and protection" that are Juvenile Justice Board and Child
Welfare Committee.

Juvenile Justice Board (JJB)

The JJB has preventive Section to subsume the Juvenile cases and therefore the Board
headed by a Principal justice "who ought to be a Metropolitan justice or a Judicial
justice top quality having gorgeous learning in youth neural structure science and Child
welfare". There are social staff one amongst whom should be a feminine. they're
needed to be with success connected with thriving, course or welfare progression
characteristic with Childs for quite whereas and have a post-prompted designing in
welfare work, mind examine, Child improvement or another humanism discipline.
Prohibitive ward over the Juveniles has been given to the Juvenile Justice Board and
therefore the Board has ability to negotiate and decide occurrences of Juveniles. "The
Juvenile Justice (Care and Protection of Children) Act, 2000" has been given
displacement result and every one offenses together with NDPS Act, Arms Act,
SC/ST interference of Atrocities Act the degree that anyone is aware of dead by a

138
Juvenile should be asked by a Juvenile Justice Board . once unsure, even the Section
eighteen (abhorrence of certain Bail) of scheduled Caste and therefore the scheduled
Tribes (Prevention of Atrocities) Act, 1989 doesn't have any basic bearing if there got
to be a happening of a Juvenile.

The Principal justice should be a Metropolitan justice or a Judicial justice in any case
the social specialists are picked by a range Committee headed by a given court decide.
The residency of the general public is three years and that they will be alloted for a
biggest of two dynamic terms. The Principal justice being a Judicial Officer is
unnatural by the affiliation conditions of the essential Nation Judicial Services Rules.
Regardless, someone from the Juvenile Justice Board ought to be attainable once
enthusiasm, by the regime on following grounds:

a. If he/she has been found dedicated of mistreatment of Force unconditional

below this Act, or
b. He/she has been prosecuted for associate offense together with ethical
depravity, and such conviction has not been turned or he has not been
allowable full pardon in respect of such offense, or
c. He/she fails to travel to the systems of the Board for sequential 3 months with
no certifiable reasons or fails to travel to below three-fourth of the sittings in
an exceedingly year.

A social professional person from the Board is paid at any rate Rs.500/ - per sitting
whereas settlements of the Principal Justice being a Judicial Officer ar supervised by
his Service Rules.

The Child Welfare Committee

The regime might, within a Period of 1 year from the date of begin of the Juvenile
Justice (C and P of Children) change Act, 2006, by notice within the official

139
periodical (incorporate for every Section) no keep of what one Child Welfare
Committee for rehearsing the Forces and discharge the obligations showed on such
sheets of trustees in Union with youth requiring Care and Protection below Juvenile
Justice (Care and Protection of Children) Act, 2000. The notice function to subsume
the Child requiring confirmation and care is to be incorporated and for indisputable
persons from whom one thing like one is a filled. The Chairman or the person from the
elemental get-together of trustees ought to be a post-graduate in welfare work, mind
analysis and Child advance and wherever such person is not open then no not
extremely a graduated category in any of the humanism request or he ought to be a
teacher, ace or a social professional add field of Child improvement.

The residency and utmost of force and therefore the half picked by regime for a term of
3 years. The reward of the general public cannot be below 500/ - per sitting. The person
from the principle cluster of trustees is also tired the wake of holding demand, by the
Govt.,

a.if he has been found unpardonable of mistreatment of Force unconditional below

this Act, or

b.he has been punished for associate offense together with ethical depravity, and such
conviction has not been changed or he has not been given full vindicate in respect of
such offense, or

c.he fails to travel to the strategy of the Board for constant 3 months with no
tremendous reasons or fails to travel to below three-forward of the sittings in an
exceedingly year.

The Committee has last ace "to get rid of cases for the thought, affirmation, treatment,
advancement and recovery of the Juveniles and in spite of suit their central wants and
confirmation of human rights".

PROCEDURE OF COMPETENT AUTHORITY

The Juvenile Justice Board and therefore the Child Welfare Committee ought to fill in
as a seat of Magistrates. Different procedural complexities are interlacing within the JJ
(C and P) Act for guaranteeing very good thought and security to Childs whereas

140
guaranteeing an inexpensive starter to them. The techniques of the capable specialist
ar accessible to simply those that are unambiguously connected with the frameworks.

The JJ(C&P) Act has match fast trade of techniques before a Juvenile Justice Board
by taking off the time most remote ranges of 4 months within that all interest
characteristic with teens got to be finished. At any rate in surprising cases for instance
cases together with transmutation fault; or mammoth variety of censured or in ordinate
concede in advancement of spectators, the Period will be reached out by 2 months.
Deferral past four to a 0.5 year prompts the completion of methods in non- valid
offenses. Deferral past a 0.5 year in credible offenses should be spoken to by the board
to the CJM/CMM transmission the elucidations behind the postponement and steps
taken. The technique to be trailed by the adept ace in holding the interest is that
suggested for the essential of interest cases, during this method discarding the
remarkable system of warrant cases, even in secured offenses by teens.

A Child requiring Care and Protection will be created before the Committee within
twenty four hours despite expertise time by any police or exceptional Juvenile police
units, any adjacent authority, youth facilitate line saw cognizant Union, social
specialist. The Committee is besides equipped to require suomoto regard for cases
passed on to their notice. While not the notice cluster Child could be passed on before a
solitary person from the Committee.

The methods as of currently the Board or Committee got to be command in Child

family condition.

Ban on revealing of Identity of the Childs

The Act limits associated censures the assembly of a report of any interest regarding an
immature uncovering the name, address, school, or some extraordinary central focuses
created plans to impel her/his obvious check, next to with the created consent out of the
capable ace. The framework changes with the quality contained within the Peiping
Rules and goes for confirming the keenness of the Child and to vow him for open
disfavor.

141
 Segregation from inner circle and Adult Offenders

The JJ(C&P) Act, 2000 has consolidated clear techniques to ensure that youths do not
speak with grown-up heels below any condition. The Board alone has the section to
method and discard all instances of reprobate Juveniles. This Act additionally contains
a system against the joint groundwork of Juveniles with others, superseding the
methods for atomic number 24.PC permitting joint necessities. The ways for keeping
Childs in foundations and places strikingly settled or saw below the JJA, additional
enfranchisement that Juveniles do not keep company with grown-up responsible social
affairs. The JJ(C&P) Act likewise unambiguously provides that a Juvenile ought not be
unbroken in jail.

Removal of Disqualification

The JJ (C&P) Act additionally given to flight of forbiddance, tolerating any, connexion
to a conviction of associate offense if there ought to develop an occurrence of Juveniles
Who are administered below its philosophy.

Child Care

The Act contains totally different techniques went for giving personalized thought to
every Child. The capable ace is allowed to choose the foremost legitimate interest for
the Child being insinuated, keeping seeable the numerous conditions characteristic with
the Juvenile. The JJ (C&P) Act provides that the practiced ace or neighboring skilled
might unharness youths going before their most clear favored purpose of read either
fully or on condition pondered fitting within the conditions. Teenagers could be free
before timetable for his or her direction, making ready in essential exchange or career
or for his or her recovery below the superintendence of their parent or guard or a
supported person. The methods for efficacious associate medical aid program and
therefore the movement report starting there for the treated Juveniles ar clear ways
apparent personalized plan of the unions and below takings under the JJ(C&P) Act.

Role of nongovernmental organization and structure

The JJ (C&P) Act having depends once together with acutely aware social specialists
and system unions at totally different focuses in lightweight of a veritable stress for

142
Juvenile. It suits consolidation of social staff in affirmation, basic organization; prepare
position, rule, and recovery of rejected and reprobate teens. The a lot of expansive
action given to tough social staff build the Juvenile Justice development framework
sanely clear and enforces the Child to stay in grips with society while not co-task of the
system the goal of reconstructing of those Juveniles within the open eye cannot be
developed.

THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN)

ACT, 2015

The Juvenile Justice (Care and Protection of Children) Act, 2015 has get Force and
invalidations the Juvenile Justice (Care and Protection of Children) Act, 2000. The
Juvenile Justice (Care and Protection of Children) Bill, 2015 was gone along Lok
Sabha on seventh might, 2015; was gone along Rajya Sabha on 22" Dec, 2015 and got
Presidential assent and are available into Force on thirty first Dec, 2015.

The JJ Act, 2015 suits continuing with the Procedures for the 2 Juveniles requiring care
and protection and Childs fighting with law. a touch of the key Procedures include:
modification in expressing from 'Juvenile' to 'Child' or 'Child fighting with law', over
the Act to cleanse the contrary significance connected with the word 'Pre- adult';
connexion of a number of new definitions, as an example, stranded, tricked and given
Childs; and immaterial, certified and ugly offenses shown by Childs; clearness in
Forces, limit and obligations of Juvenile Justice Board (JJB) and Child Welfare
Committee (CWC); clear courses of occasions for enthusiasm by Juvenile Justice
Board (JJB); new Procedures for gorgeous offenses started along by children over the
Period of young; separate new half on Adoption to contour event of vagrant, given and
given Childs; care of latest offenses submitted against Childs; and needed
determination of Child Care establishments.

Segment fifteen characterised, "exceptional procedures are created to handle Child

wrongdoers submitting ugly offenses within the cohort of 16-18 years. The Juvenile
Justice Board is given the selection to exchange instances of grievous offenses by such
children to Court of Session within the wake of directive starter appraisal. The
procedures accommodate golf shot children {in aduring a in associate exceedingly in
a very} 'position of wellbeing' each amid and once the preliminary until they

143
accomplish the age of twenty one years once that an assessment of the Child are diode
by the Children's Court. once the assessment, the shaver is either discharged on post
trial superintendence and on the off likelihood that the Child is not reworked, at that
time the Child are sent to a jail for outstanding term. The law can approach as associate
obstacle for Child wrongdoers submitting glaring offenses, for instance, assault and
murder and can secure the privileges of livid person".

To make more and more productive allocation frameworks for vagrant, double- crossed
and given teens, this native Adoption Resource Authority (CARA) is given the
standing of a statutory body to enforce it to play out its ability extensively a lot of
moderately. Separate bit (VIII) on Adoption obliges easy Procedures about gathering
and educates for not willing to the set down philosophy. Techniques are efficient with
courses of occasions for each in-country and between country total together with
saying a toddler really free for assignment.

A few new offenses submitted against Childs, that are to date poor checked below
another law, ar consolidated into the Act. These include: technique and getting of
Childs in any capability in the least together with judicial affirmation, beating in Child
care foundations, use of Child by offender social occasions, offenses against weakened
Childs and. obtaining and grabbing of Childs.

All Child care foundations, paying very little relevancy whether or not continuing
running by regime or by purposeful or non-authoritative Unions, that are planned,
either altogether or fairly to deal with Juveniles, paying very little notice as to if they
get blessings from the Govt., are to be essentially chosen below the Act within a 0.5
year from the date of beginning of the Act. Afterward discipline is given within the law
if there got to be a happening of hindrance of Act rules.

WANT OF CHANGE IN EXISTING JJ (C&P) ACT 2000

After the 2012 city snare, it absolutely was found that one amongst the censured was a
handful of months from being eighteen year getting on. Thusly, he was endeavored in
an exceedingly court. On thirty one July 2013, Subramanian Swamy, associate union
official recorded a Public Interest proceeding within the Supreme Court of India

144
chasing down that the Child be endeavored as a cultivated youth in an exceedingly
court. The Court asked for that the court surrender its alternative.

After the Supreme Court allowed the court offer its alternative, the Child was
sentenced to three years in an exceedingly modification home. The gorgeous
adversities' persons recommended the selection associated same that by not
reprehension the Juvenile as an adult criminal the court was encouraging alternative
Juvenile heretics to finish the relative offense.

In the huge package of July 2014, Minister of girls and Child Development, Mrs.
Maneka Gandhi same that they were putting in place another law which is able to
enable 16-year-olds to be tried as adult. She same that 1/2 Juvenile Delinquencies
were collected by Juveniles Who extremely grasp that they create tracks in an
exceedingly contrary bearing from it. She nearly joined that dynamic within the law in
like manner enforce the Juvenile to be tried murder and strike as adults. The bill was
shown within the Parliament by Mrs. Maneka Gandhi on twelve August 2014. On
twenty two Gregorian calendar months 2015, the cupboard cleared the last structure
once a number of changes.

The bill provides a Juvenile Justice Board, to choose whether or not a Juvenile
criminal within the age gathering of 16-18 ought to tried as associate adult or not. The
bill in like method appeared from urban center Convention on Protection of youngsters
and Cooperation in Respect of Inter-Country Adoption, 1993 that were missing within
the past spotlight.

ASSOCIATE OVER READ OF THE JUVENILE JUSTICE ACTS

The Juvenile Justice Act, 1986 showing uniform and non-medicinal approach
regarding the Juvenile in India, cleared totally different bothers that had created thanks
to group action of consistency. It improved the condition extensively however
meantime totally different alternative lacunae within the field of Juvenile Justice ought
to are discharged for accomplishing its deduced native points of guaranteeing care,
insurance, recovery, and then forth., to reprobate and abused teenagers and build
relationship of the Juvenile Justice System in observation with the Peiping Rules and
alternative U.N. customs and shows.

145
The ramifications of 'Juvenile', 'neglected Juvenile', and 'criminal Juvenile' picked the
plans of persons falling within the extent of the JJA. a close-by examination of those
definitions within the JJA showed a group action of clearness. The importance of
'Juvenile' was sex-outlandish and therefore the legitimization offered for the
confinement failed to have a keen reason. the power was upheld as being principal in
lightweight of the trail that within the Indian culture young girls needed security for a
unceasingly extended Period. Regardless, the JJA, aboard the Department within the
cut-off age, created no philosophy for the exceptional thought of young girls. It did not
understand however young girls were removed quite the juvenile colleagues. As
indicated by the Peiping Rules, uncommon care as for comes below the JJA for young
girls was essential to ensure that young girls failed to get less thought, insurance, or
treatment than the juvenile colleagues. The JJA Act, 2015 has currently given the cut-
off age of eighteen for each energetic partners and young ladies at any rate while not
creating any uncommon procedures for young girls.

The JJA has duty-bound simple treatment to criminal and unnoticed youths. The living
Nations of those Childs are comparable and that they continue skimming between a
veritable, eager life and one amongst terrible conduct in their battle for survival. Their
checking as a Nation or unnoticed by regard to the commission of associate offense,
significantly if there ought to develop an occurrence of minor offenses, is completely
judicialistic and lucky. Associate burdened Child discovered indulgent once
acknowledged responsibility for, is to be supervised as a reprobate Juvenile. The social
examination report of another discouraged Juvenile might demonstrate that he's
adjusted with indulgent however within the event that he is not found indulgent, he's to
be controlled as a rejected Juvenile.

"The Juvenile Justice (Care and Protection of Children) Act, 2015" has created gap
between "Young persons fighting with law" and "Juveniles requiring care and
confirmation" logically inflexible. The Act begins with the enlightenment that this
institution below stands a toddler all around sorted out methodology however it
disregard to do and propose most of the Childs checked under its Section as Childs. a
number of them are processed Childs whereas others are Juvenile. The word 'Immature'
has been created a similarity delinquent youth. The JJ (C&P) Act itself has used the
word 'Juvenile' in numerous Sections to collect a toddler either gave testimony

146
concerning or found to possess given associate offense.

While touching methodology for management of persons Who to utilize Childs for
asking, it utilizes each youth and Juvenile paying very little heed to the method that
each the terms mean persons beneath the age of eighteen. On the off likelihood that
'Pre-adult' demonstrates that Child battling with law is to boot consolidated into this
Section, clearly 'Pre-adult' accomplices to 'Immature fighting with law'. Further, by
recommending Childs suspected to possess given associate offense as 'Immature in
hardship of law it rebuffs them even before they're found to possess displayed associate
offense and therefore the explicit soul of the Act is against the maligning of the Childs.
The formulation leaves no degree for feeling that they're primarily suspected to be 'in a
nasty position with law' which it's going to end up they need no ifs ands or buts, not
abused the law.

The significance of rejected Juvenile in like method doesn't show an inexpensive

technique. The hugeness of removed Juvenile was thus wide on take part each method
that basically matters every poor Childs in India within the extent of the JJA.
connexion of each single poor youth in India might instigate obstruction with the lives
of thousands poor guards Who might fall within the Section of the Act associated
welcome demand thanks to permissive their wards to figure to induce an occupation
or by convictions of little beating to line up the Child and it's going to outrage the
social surface everything thought of. The Procedure might are affected by the target of
making certain care and security to the bulk of the Childs in want however it allowable
uncontrolled Force of intervention at the commerce of the Nation. moreover,
connexion of such a good assortment associated variety of Childs within the extent
of the JJ Act needed an altogether more and more basic accentuation on system
journey and non-institutional treatment of Juveniles than was given by the JJA.
The JJ (C&P) Act has in like manner enlarged the importance of youths requiring care
and security at any rate denying Child vagrants from its enlargement.

The JJA, almost like the Childs Act, 1960 duty-bound broaden complete gear however
thanks to nonattendance of stress of the Govt. simply a number of work environments
were created that primarily enclosed and enlarged the gap between the

147
Govt. workplace to administer care and insistence to the Childs and therefore the
teenagers in want. workplace during this manner changes into associate illumination
behind incitation to the Juveniles and their persons. The systematic Child is formed
associate outsider to his terribly circle of relatives and system. Immature Justice unions
got to be restricted and influenced open within strolling Department of teens in got to
be persistently acceptable for keeping the Childs inspired with their family and system.
Given the broad command quality towards execution of the sooner youngsters Acts, the
JJA got to have favored a specific foundation, with dynamically discernible feature on
personisation and separation within that system. The JJ (C&P) Act has not looked out
for this examination associated keeps having an illustrate authoritative structure. The
JJA had recorded institutional and nor-institutional measures for managing teenagers.
In any case, the high variety of Procedures about Union of Childs, joined with the
nonattendance of a Procedure expressly satisfying response to affiliations precisely if
all else fails, gave a definite tilt to the JJA toward rationalisation. The gorgeous variety
and course of action of Childs enclosed within the JJA may nor be unbroken in
foundations nor improved through a method for rationalisation.

System primarily based exercises associated semi-institutional Procedures united into

the Peiping Rules got to are taken an interest within the JJA. A Juvenile course
knowledgeable ought to be created a significant little bit of the Juvenile Justice
structure for giving mental facilitate that is most needed in cases for recovery. The JJ
(C&P) Act has fretted basically more and more noticeable system primarily based
alternatives at any rate the subtleties of such endeavors has been left to be extra by the
principles to be confined below the Act that has encountered show ar consolidated
essentially once quite whereas and every now and then once Judicial mediation.

Slighting the revelation within the National Policy for youngsters that endeavors would
be created for facilitate to social affairs of poor Childs, no such live had been taken
associate interest within the JJA expressly administering such Juveniles. The JJA had
lost the native purpose of read of the Peiping Rules for remittent intercession and
redirection. Varied assessments taken for the thought and welfare of teenagers and
moms were neither barely of the endeavors of the Juvenile Justice affiliation nor were
those unions co-ordinated by the occasions of carelessness and Delinquency among
teens.

148
No precepts were accessible for conjury the overall welfare measures for the formative
wants of expelled and reprobate Childs supervised below the JJA. The JJ (C&P) Act
wires guards within the procedure characteristic with weight of fine and section of
youths once due steerage however not within the technique directive support. Inspite of
The Peiping Rules clearly giving that every one youths have a clearly to affordable and
solely starter as per thoroughly evident estimates the JJA, simply allowed Judicial
backers in lightweight of nonreligious person Childs and proceeded with the refusal on
their quality by ethicalness of unnoticed Childs. The legitimization may are that
because the ousted Childs were neither gotten nor tried commission of associate
offense, there was no want for applying equal pointers, benchmarks, and fundamentals
that apply to Nation youths. Regardless, will the employment of assorted expressing
modification the probability of the strategies?

Basically, there is no capability between 'get' of a nonreligious person Juvenile and

'tolerating responsibility' for a toddler. The categories of Childs head to varied
judgment bodies simply if such bodies are extremely in agreement to the Section. One
thing else, a much identical justice manages the portrayals of Childs. The procedures
to be trailed by each one of them are same, explicitly, the structure got a handle on for
the primer of intrigue cases by the atomic number CR.P.C. The delayed consequences
of a finding that the juvenile is slighted or criminal cannot be massively unimaginable
as equivalent exchange choices are open within the 2 cases. The JJ (C&P) Act
envisions thought of distinct homes for expelled and criminal Juveniles at any rate the
Procedures do not contain any capability within the chance of the 2 homes. Besides,
basically they need to remain unbroken within the homes gave below the Act. Soon, in
numerous spots solely a solitary house is by and huge created due with cabin all
systems of teens.

These elements show that specific procedural and evidentiary benchmarks cannot be
well-kept. The chance of shortening of likelihood within the 2 cases is comparable and,
on these lines, sq. with attestation ought to be created open for the 2 Juveniles 'battling
with law' and 'requiring Care and Protection'.

149
After India inexplicit the United Nations Rules for defense of Juveniles empty their
Liberty, hardship of likelihood assembles associate kind of containments or limitation
or the Nation of that person in an open or personal tubular setting, from that this person
is not allowable to go away, unyieldingly, in lightweight of clear enthusiasm of any
Judicial, body or alternative of professional. teens is also deadlocked from attesting
open entree in like manner in keeping with the Peiping Rules. From this point forward
all teens whether or not in strife with law or requiring care and affirmation, and met all
conditions for a judicial guide if India means that to satisfy its overall duties. The JJ
(C&P) Act, doesn't build any such technique. Or nevertheless perhaps, it
conceptualizes the keep of Childs in Childs homes and one amongst a sort homes as
serving a term95. The Act wills impertinent quite pay lip union to the degree mixing its
duties below the Indian and law of nations.

The JJ(C&P) Act, 2015 like JJ Act continuing to be tranquil on finger printing, created
associate improvement by giving that the Board can encourage that the elemental
record of conviction be clean once the end of your time of supply, or once an
inexpensive Period, as bolstered below the benchmarks. Earlier, the JJA was quiet with
relation to the use of records of Child techniques in taking place systems and finger
printing of Childs.

The JJA primarily selected the Sections within which principles is also created by the
Nation governments. It did not kicked off the character and customary of after-care to
lean. Matters characteristic with after-care were left to be coordinated below
subordinate request, dispatching this key Section of the JJS to the muse. The
nonattendance of a statutory framework for investigation on the movement of a
toddler, once she/he left the house, what is more hampered the examination and
improvement within the operating of the JJS. The JJ (C&P) Act, 2015 has not modified
position.
The JJA was in like method quiet on the purpose root of frameworks with relation to
offenses against Childs. In any case, the offense of utilizing teens for requesting that
is as from late enclosed, was the central cognizable offense, someone was needed to

95
Section 59(4) dealing with leave of absence provides that the duration of granted leave shall be deemed
to be part of the time for which they are liable to be kept in the home, but in case of children who fail to
return after their leave expires, the time that elapses between expiry of the leave and their return shall be
excluded in computing the time during which they were liable to be kept in the institution
150
report a personal grievance. The Child or her parent or guardian was perhaps expected
to report the dispute. This was associate aching separated from the social and cash
connected substances of their reality and acknowledged unfathomable care and
extraordinary grit on their half. The JJ (C&P) Act, 2015 has created the bulk of the
offenses against Childs as cognizable. Regardless, the problem of deadness and
nonattendance of stress towards essential and order of those offenses got to in like
method are overseen.

Fitting and true use of the Act will build the uncommon courses of action, philosophy,
checks, and changes shown by any legislative act. Thus in like manner, technique of
the JJA may well be of any outcome simply if the Act was acknowledged really.
Nonetheless the method that the JJA had been affirmed by Parliament, the rule
Responsibility of the close-by government versus the Act was to incite its execution.
The Responsibility of constructing of the muse, for lodge all categories of teens in by
a protracted shot the overwhelming majority of the spots, was with the regime. whereas
lighting up the Act, the problem of nonattendance of native points looked by the
Nations in finishing the Childs Acts had been left immaculate. The new system
characteristic with the welfare support was imparted in phenomenally wide terms and
failed to opt for the character or level of obligation by the Nation in this money. the
money connected invigorate extra to the Juvenile Justice Bill 1986 communicated that
the Bill understood no additional fund burden on the Section government as 'this
approval would be finished, everything thought of, by the Nations and besides in
vitality regarding Union Territories this structure open below The, Children Act, 1960
as reviewed in 1978 gone along Parliament would be revamped and used. This
suggested the middle had not revered any additional fund facilitate to the Nation
governments for putting in place the specified mechanical grouping below the Act. The
JJ (C&P) Act, 2015 has moreover continuing with the equal framework and model.

The majority of the methods managing the development of various relationships below
the JJA used the enforcing word 'may' enforcing the regime to line up, see, and started
the fundamental work environments. Such alert is also indispensable in an exceedingly
tremendous nation like India to fulfill the dynamic wants of assorted

151
Sections. It simply enforced while not creating the procedures obligatory on the
Nations to execute the methods for the Act. The instance of execution of the Childs Act
giving equal watchfulness, offer Nation 'may' operative speak significance 'may not
Still, 'may' wasn't supplanted by 'will' within the JJA and the same purpose of reference
has been gotten a handle on below The JJ(C&P) Act, 2015.

The elucidations behind re-sorting out The JJ(C&P) Act, 2000 and therefore the JJ
(C&P) Act 2015 are seen below the Act because the Indian Nation's obligation below
the Indian and across the board laws96. With such unequivocal elaboration of the
records and their measures one would predict that a move from welfare ought to
rights, inciting utilization of Childs. There is a system within the Act which may be
viewed as observant a sort of rights below the CRC97. below Section 31(1)(vi), that
enforces teens requiring care and affirmation to approach the Committee themselves. In
any case, there is no seeing system taking off that every one Childs in want are given
the ensured thought. There has not been any information, or maybe tedious
assessments, regarding what variety of Childs in India want care and security and
wherever are they designed demographically.

Another event of dis-propping of Childs is Section eleven of the JJ(C&P) Act 2015 that
offers management to a guardian, sort of a parent, in whose care a Juvenile is about,
however the 'dedication' is essentially to stay up the Child and There is no commitment
on the boss to confirm the complete improvement and progress, sort of a parent of the
Child. The JJ (C&P) Act, additionally shows deadness of assorted main issues raised
below the before Acts. Among the varied problems about the JJA upset below the
careful look of the Supreme Court and High Courts beginning at currently, the running
with are raised once more and once more.
The JJ (C&P) Act, 2015 has let numerous interest rising {well enough tolerably to a
tolerable degree to associate adequate degree} alone for its own emerge Procedures
unrequited like what's the higher ordinance below that a toddler is also unbroken in a
tremendous home and below what conditions will a descendants of eighteen years be
96
Articles 15(3), 39(e) and (I), 45, and 47 of the Constitution of India, the Convention on the Rights of the
Child 1989 (CRC), the UN Rules for the Administration of Juvenile Justice 1985 (Beijing Rules), the UN
Rules for the Protection of Juveniles Deprived of their Liberty 1990, and all other relevant international
instruments are among the reasons for this legislation
97
Broadly speaking CRC recognizes five kinds of rights of children: (1) Right of survival and development,
(2) Right to name, nationality and identity, (3) Right to family, (4) Right of participation and (5) Right
against exploitation
152
sent to an medical aid home and ar the rights and obligations of Juveniles gotten a
handle on below the JJ (C& P) Act 2015 appear as if those of a trademark visualized
Child?

Police stay the key relationship for raised Childs as of currently the Juvenile Justice
board, significantly those battling with law, within the section of the JJ (C&P) Act
2015, The Procedure enforcing constitution of the board and therefore the Committee.
In like method offer Procedure, as an example, improvement of Childs below the
careful gaze of a decide within twenty four hours, refusal on keeping them in police
base camp however the Juveniles go below the management of police fully for quite
whereas.

The issue is additionally browned off because the JJ (C&P) Act, 2015 provides that
Childs cannot be free on Bail by the police masters and therefore the among catch
associated creation children should be unbroken simply in an affirmation home. it's
extraordinary that in varied Nations solely a solitary discernment home has been
developed, particularly if there got to be a happening of young ladies, either these
Juveniles can stay in police central command or in affirmation homes that will be a
protracted method from their standard spot of living Procedure.

The word 'ask for' has been utilized in varied Sections of the JJ (C&P) Act, 2015
however it's not been pictured. it's unthinkably tough to boost most of the events of
free, vague, or limiting drafting within the JJ (C&P) Act, 2015. simply a number of
Procedures is also verified to depict the purpose. What quite intrigue is being thought
of below this Act? can arouse created by the principle gathering of trustees, a police, a
one of a sort Juvenile police unit, or the allotted police be the proportionate? Will the
term 'social master' deduce the post key manager?

The turning away of 4 months within that to finish the intrigue applies simply to a
"social ace and Child welfare officer" and to not the notice cluster, because the Period
is to be counted from the date of 'receipt of the intrigue'. The Committee at this stage
has been given the Force simply to "enforce the Juvenile to remain" within the Childs
home or house home. The Act doesn't appear to administer any ability to the elemental
form of trustees to form authentic demands in Union with "teenagers

153
requiring care and certification" to be unbroken with guardians or watchmen within
the thick of methodology. The frameworks obliging assignment, child care, or support
to ensure familial thought to Childs do not illuminate who can trust the
reasonableness of those decisions.

The period of stay in associate medical aid Union cannot beat 3 years. This surmises a
toddler who goes there within the wake of finishing the age of eighteen years might
keep until the age of twenty one.

To mixture up, it'll all things thought of be same that The JJ(C& P) Act, 2015 has given
a take a look at to every and each created customary and models of Judicial drafting
and comprehension. near the topic of a veritable Responsibility with the problems, the
Act apart from disregard to regulate to existing general human rights rules, particularly
the Convention on the Rights of the Child 1992 (sic), The Peiping Ruler (1985) and
United Nations Rules for Juveniles empty their Liberty (1990) that ar assembled it its
presentation. The JJ (C&P) Act 2015 remains a simply representative development
toward a a lot of youth sympathetic institution.

The examination reflects the elemental for perceiving arduous and quick changes
within the Juvenile Justice system in India as here has been no attentive review of the
Juvenile Justice approach. One institution has looked for once another with immaterial
changes went for removal a phase of the problems looked in its Union. These
foundations haven't altogether joined the law set round the higher courts or gave clear
reactions to real request raised on the vitality of categorical words, verbalizations, or
Procedures contained in this.

The JJ (C&P) Act, 2015 features a nonsensical variety of peculiarities to confirm swish
exercises below its gift Procedures. Its confirmation of articles and reason might
endorse that it's been passed with the most effective of core interests. All things
thought of the entire all the what is more considering, fund resources, and
Responsibility, and not minor foundation of another supporting, are relied on to
possess any kind of impact to the aim for teenagers. soon, it's too early to assess its
veritable impact on the operating of the new Act in India.

154
 CONDUCT WITH JUVENILE OFFENDERS

To improve the conduct of Juvenile and to reform or rehabilitate them following cares below the JJ
Act and Rules are important;

1. Juvenile who not discharged on Bail, are to be unbroken in Observation Home?

2. Force of regime to stipulate Rules for the characterization and isolation of Juveniles
in Special Homes.
3. The JJB specialist to pass last defensive guardianship arranges.
4. Juveniles affirmed with deplorable or real offenses would most be able to be sent to
Special Home for not over 3 years.
5. Juveniles are qualified for be socially coordinated/restored through reception, child
care, and support with once care.
6. Intensive personalized attention to juveniles.

Juvenile alleged with serious crime are usually not mentally healthy or had mental disorder, e.g.
dependent with liquor or totally different medications that prompts social changes, such shaver be
sent to a mental emergency clinic/nursing home.
A proper reaction to Juveniles Who do real wrongdoing needs a framework that requests explicit
altered reactions passionate about the wants and conditions of each Juvenile, taking into care the
result on the casualty of his wrongdoing, and therefore the a lot of in depth interests of society.
From the on top of examination signally Juvenile law in India will needless to say accommodate
associate Juvenile law grounded framework that centers around rising and restoring Juveniles Who
do real wrongdoing through personalized between disciplinary administrations that are determined
and looked into totally, views that aren't unreal within the adult criminal Justice structure that is
introduced on backlash and order. It likewise holds the eye on the finishes of Justice, considering
the interests of the person in question and society.

CHAPTER–V
JUDICIAL TRENDS ON JUVENILE DELINQUENCY
AND IMPORTANT JUDGMENTS

13
 By this chapter an attempt is made to highlight the role of the Supreme
Court and different High Courts in emergence of Juvenile Justice System in
India. When any juvenile is arrested then initially the case of the juvenile
delinquent is tried by the Juvenile Justice Board or Lower Court but their
judgments are being not binding on other courts. So the tendency of the
judicial approach reflected in the judgments of Hon'ble Supreme Court and
High Courts towards a juvenile delinquent are being studied here. The
Children Acts, Juvenile Justice Act, 1986 and Juvenile Justice (Care and
Protection of Children) Act, 2000 show their main concern with the
juvenile justice system in India but many times judiciary has expressed its
serious concern relating to proper implementation of provisions of law for
the beneficiary of children.

Judicial Trends

Judicial trends relating to juvenile delinquency are being set by various

courts which can be assessed under following ways:-
1. Age of juvenile.
2. Jurisdiction.
3. Apprehension and production
4. Right to Bail.
5. Disposition.

14
 Determination of Age of Juvenile
It is the responsibility and duty of the court to determine the age of a person
who is being involved or committed a crime, whether he is juvenile or not.
The court held that “very young children should not be sent to prison”1.
A juvenile under JJ Act, 1986 means “a boy who has not completed the age
of sixteen years and a girl who has not completed age of eighteen years”. In
Juvenile Justice (Care & Protection) Act 2000, the difference of age of
male and female child has been removed and a uniform age pattern was
provided i.e 18 year of age for both. Further, Juvenile Justice (Care &
Protection) Act 2015, defined “child” and “juvenile” under sections 2(12)
and (35) of the Act respectively, define as “a person who has not completed
the age of eighteen years”. And as per section 2(13) of the Act 2015 “child
in conflict with law” means “a juvenile who is alleged or found to have
committed an offence and has not completed eighteen years of age as on
the date of commission of offence”. So it is the responsibility of the court
that before sentencing a person, it is important to determine the age of such
person with the help of relevant documents and then decide whether he/she
is a juvenile or not. Enquiry should be held to verify the related documents
pertaining to age of a juvenile after he/she produced before the court/board
and during the pendency of his case. However, now the Juvenile Justice
(Care & Protection of Children) Act, 2015 has now finally solved the
controversy by referring the child to “a person who has not completed the
age of eighteen years as on date of commission of offence”. However, this
issue of relevant time at which the child should be below the age of
eighteen years has been raised in many judgments but has always been a
debatable issue that is likely to continue in future too.2

1
Emperor v. DharamParkash AIR 1926 (Lahore) 611 AIR 1921 (Oudh) 190.
2
ArnitDass v. State of Bihar, AIR 2000 (SC) 2264, UmeshChander Vs. State of Rajasthan,
1982 Cri.L.J.994

140
The protective attitude provided by the special legal provision relating to
children has been restated by our judicial system on various occasions.
Delinquent children enjoyed special protection under certain laws like “The
Apprentices Act, 1850, Indian Penal Code, 1860, The Reformatory Schools
Act, 1897, The Code of Criminal Procedure 1973. For example section 82
of IPC, a child below 7 years is not liable for any criminal liability and
section 83 of Indian Penal Code extends this exemption to children between
7 and 12 years of age if proved to be doli- incapax. The question under the
IPC is limited to mens-rea and the age of the child”.
3
In Emperor vs. WaliMohd.& another the Court held that “throwing of
stone at a train by children of 5 and 8 years would ordinarily be protected
under Section 82 and 83 of the Indian Penal Code and would not be
punishable as offence”. The Supreme Court in the year 1977, held “that the
penalty of death should not be imposed on a person below the age of
eighteen”.4

In Ashwani Kumar Saxena vs. State of M.P5, “Ashwani Kumar Saxena and
two others persons, namely, Jitender and Ashish were charge sheeted by the
police for the offences punishable under Section 302 of the IPC r/w Section 27
of Arms Act and Section 302 IPC r/w Section 34 of the IPC, respectively, for
an offence committed by them on 19.10.2008 at 12.30 am in front of Krishna
Restaurant, Chhatarpur which resulted in the death of one Harbal Yadav for
which Sessions Case No.28/09 was pending before the First Additional
Sessions Judge, Chhatarpur, Madhya Pradesh (M.P.). On 11.11.2008 the
appellant filed an application before CJM Court, Chhatarpur u/s 6 and 7 of the
J.J. Act claiming that he was a juvenile on the date of the incident and hence,

3
AIR 1936 (Sind) 185
4
Raisul v State of UP, AIR 1977 (SC) 1822.
5
[Criminal Appeal No. 1403 of 2012 Special Leave Petition (CRL) No. 7271 of 2011]

141
the criminal court had no jurisdiction to try this case and the case be referred
to JJ Board and be released on bail.”

The C.J.M. court thought of conducting a bone test for determination of the
age of the appellant. Dr. R.P. Gupta, PW-2 conducted age identification of the
body of the appellant by X ray and opined epiphysis of wrist, elbow, knee and
iliac crest was fused and he was of the opinion that the appellant was more
than 20 years of age on 14.11.2008 and a report exhibited as P-5 was
submitted to that extent. Dr. S.K. Sharma, Medical Officer, District Hospital,
Chhatarpur was examined as PW-3, who conducted teeth test on the appellant
for age identification. PW-3 had found that all 32 teeth were there including
all wisdom teeth, so the age of the appellant was taken as more than 21 years.

6
Om Prakash vs. State of Rajasthan , Thus the questions inter alia which
require consideration in this appeal are, whether the respondent/accused herein
who is alleged to have committed an offence of rape under Section 376 IPC
and other allied sections along with a co-accused who already stands
convicted for the offence under Section 376 IPC, can be allowed to avail the
benefit of protection to a juvenile in order to refer him for trial to a juvenile
court under the Juvenile Justice (Care and Protection of Children) Act, 2000
although the trial court and the High Court could not record a conclusive
finding of fact that the respondent/accused was below the age of 18 years on
the date of the incident?

In Umesh Chandra vs. State of Rajasthan 7 a full bench of the Apex Court,
too, held that the date of commission of offence as the relevant date for
applying the Children Act. It observed:
“As regards the general applicability of the Act, we are clearly
of the view that the relevant date for the applicability of the Act

6
(2012) 5 SCC 201
7
l982 Cri LJ 994.

142
 is the date on which the offence takes place. Children Act was
enacted to protect young children from the consequences of
their criminal acts on the footing that their mind at that stage
could not be said to be mature for imputing mens-rea as in the
case of an adult. This being the intendment of the Act, a clear
finding recorded that the relevant date for applicability of the
Act is the date on which the offence takes place. It is quite
possible that by the time the case comes up for trial, growing in
age being an involuntary factor, the child may have ceased to be
a child. Therefore, Sec.3 and 26 become necessary. Both the
sections clearly point in the direction of the relevant date for the
applicability of the Act as the date of occurrence. We are clearly
of the view that the relevant date for the applicability of the Act
so far as the age of the accused who claims to be a child, is
concerned, is the date of the occurrence and not the date of the
trial”.8
The controversy, however, did not end with the above decision of the apex
Court. This question always to be raised under the JJA, and at least two
High Courts held that “the age at the date of trial to be important of its
applicability”.9 These cases were decided in clear ignorance of the apex
Court decision mentioned above in Arnit Das vs. State of Bihar 10 where in
bench of apex court held that “the first date of appearance was the relevant
date for applying the Act”. The bench reasoned that the use of the word „is‟
at two places read in conjunction with “a person brought before it.” Section
32 of the JJA clearly indicated for determination of age when the accused
was presented before the court. The decision was subjected to severe

8
However, this ruling of the court seems more an obiter than the dicta as it is not clear from
the facts of the case whether this point was an issue in the case.
9
V. Luxminarayana, 1992 Cri LJ 334(AP)(Overruled in BandellaAlliah 1995 Cri LJ 1085
(AP) (FB); SheoMangal Singh (1990 Cri LJ 1698) (Luck).
10
AIR 2000 (SC) 2264.

143
criticism.11 In Malda Dada vs. State of Gujarat 12 , Gujarat H.C held that the
word „attained‟ used in the J.J. Act of 1986 means completed the
prescribed age in the Act. Therefore, a boy who has not completed the age
of sixteen years and a girl who has not completed the age of eighteen years
is a juvenile according to the The JJ Act, 1986. In Gopinath Ghosh vs. State
of West Bengal13 The Apex Court allowed “the plea of child status to
14
be raised for the first time before it on earlier as well as later
occasions”.15However this approach of apex court has not been followed
continuously by the apex Court itself.

In Hariom vs. State of UP the apex Court again summarily dismissed the
plea of being a child as no evidence was placed during trial or before the
High Court, without making any mention of its own cases holding that it
was too late to produce a certificate before apex Court.
The question arise before the Apex Court in Arnit Das16was whether a
person is juvenile or not and crucial date is the date when he is brought
before the competent authority or court and not the date of commission of
offence. After considering all the evidence and material facts in this regard,
the court held that as far as the present context is concerned the crucial date
for determining the question whether a person is Juvenile, is the date when
he is brought before the competent authority or court. So far as the ruling
regarding the age of the appellant is concerned, it is based on the evidence
arrived at after taking into consideration of the material facts on record and
valid reasons having been assigned for it.

11
VedKumari, ln Defence of Arnit Das vs State of Bihar: A Rejoinder' (2002) 2 SCC (Jour)
12
Malda Dada vs. State of Gujarat, I.L.R. (1972) Gujarat 326.
13
GopinathGhosh vs. State of West Bengal , 1984 Cri. L.J. 168 (SC
14
Dharampal and others vs. State of U.P.,AIR 1975 (SC), 1917.
15
Umesh Singh vs. State of Bihar, 2000 (4) SCALE 511, Hawaldar Singh v. State of U.P., AIR
1985 (SC) 955.
16
Arnit Das vs. State of BiharAIR 2000, S C 2264 A

144
In Shantanu Mitra vs. State of West Bengal 17 the facts of the case are
Shantanu Mitra was arrested and tried u/s 302 IPC. In the court he raised
the plea that he had not attained the age on the date of commission of the
offence i.e. 22-2-98 and was entitled to get protection under JJ Act, 1986.
The appeal was allowed by Apex Court holding that “once an entry is made
by an official, the same cannot be doubted on mere argument that it was not
confirmed with date of the suggested date of birth of appellant”. In case of
18
Krishan Bhagwan a question arose as to what procedure should be
followed where a child within the meaning of the Children Act is being
tried and convicted by the regular criminal court and plea regarding bar of
his trial by the regular court was taken for the first time at the appellate
stage”. The Bench made reference to the decision of case of Gopinath
Ghoshand, the court treated the appellant as juvenile u/s 3 of the Act and
exercising power of Juvenile Court u/s 7(3) of the Act while maintaining
the conviction of appellant under sec 302 IPC the court directed “the
appellant to be released on probation based on good conduct on executing a
security bond to satisfy the trial court that will keep peace and be of good
behaviour for period of 3 years. It further directed him to pay a sum of Rs.
5000/- as fine, which shall be paid to the widow of the deceased.
In Bhoop Ram's Case19 the Apex Court ruled that since the appellant is now
aged more than 28 years of age there is no question of appellant now being
sent to an approved school under the U.P. Children Act for being detained
there in.
In Poulush Pahan vs. State of Jharkhand and Another 20 it was mentioned in the
FIR that the petitioner had love affair with the married daughter of the
complainant and in course of time she became pregnant which led to her

17
ShantanuMitra vs. State of West Bengal,AIR 1998 SC. W 4099, AIR 1999 SC 1587.
18
KrishanBhagwan vs. State of BiharAIR 1989 PAT 217 (FB) Jayendra v. State of U.P. AIR
1982 S.C. 685, 1982 Cri. L.J. 1000.Bhola Bhagat vs. State of Bihar, 1998 Cri. L.J. 1990, 1991
Cri LJ 1283 (Pat) (FB).
19
Bhoop Ram vs. State of U.P. 1989. 3 SCC (AIR 1989 SC 1329)
20
2006(1)JCR 146(Jhr)

145
illness. The petitioner is alleged to have given her some herbal medicine for
abortion, which she took and due to which she died. The Court observed that:
“It is a settled law that for declaring a person as juvenile under
the Juvenile Justice Act 2000, the age of the accused has to be
considered on the date of occurrence when the offence was
alleged to have been committed and not on any other
subsequent date. In the present case, the petitioner was found to
be aged about 16-17 years on 8.12.2003 by the Medical Board
consisting of three Doctors who examined the petitioner
physically as well as radiologically. In view of this finding of
the Medical board, the petitioner was aged 14-15 years on
12.2.2002 i.e. on the date of alleged occurrence. In view of this
position, the ACJM was held to have committed grave error in
not declaring the petitioner to be a juvenile. The ACJM ought to
have held the petitioner on the basis of the report of the three
members Medical Board.”
In Pratap Singh vs. State of Jharkhand and another 21 The High Court took the
view that “the date of birth, as recorded in the school and the school
certificate, should be taken as best evidence for fixing the age of the appellant
and any other evidence in proof of age would be of much inferior quality”.
The Apex Court was called upon to decide on conflicting views given by in
Arnit Das vs. State of Bihar22and Umesh Chandra v. State of Rajasthan23. The
Court referred the matter to the Constitution Bench. The questions which
Bench decided were:
1. Whether the date of occurrence will be the reckoning date for
determining the age of the alleged offender as Juvenile offender or the
date when he is produced in the Court/competent authority?

21
JT 2005(2) SC 271
22
AIR 2000, SC 2264A
23
1982 Cri. L.J. 994

146
 2. Whether the Act of 2000 will be applicable in case a proceeding
initiated under 1986 Act and pending when the Act of 2000 was
enforced with effect from 1.4.2001?
Here the court overruled Arnit Das judgment and restored the position
taken in Umesh Chandra case thereby holding that the reckoning date
for the determination of the age of the juvenile is the date of an offence
and not the date when he is produced before the authority or in the
Court.
In Jai Kishan @ Jaiki vs. State of Haryana24 The court held the conviction of
the appellant recorded by the trial court vide judgment dated 16.8.2001, is
upheld. However, the order of sentence passed by the trial court on 18.8.2001,
is hereby set aside. Since the appellant is already on bail, therefore, there is no
need to issue the release warrant.
In Jabar Singh vs. Dinesh & Anr. 25 The court observed that “the entry of date
of birth of respondent no.1 in the admission form, school records and transfer
certificate did not satisfy the conditions laid down in Section 35 of the
Evidence Act inasmuch as the entry was not in any public or official register
and was not made either by a public servant in the discharge of his official
duty or by any person in performance of a duty specially enjoined by the law
of the country and, therefore, the entry was not relevant under Section 35 of
the Evidence Act for the purpose of determining the age of respondent no.1 at
the time of commission of the alleged offence and resultantly, the appeal was
allowed setting aside order dated 18.8.2006 and remit the matter to the trial
court for trial of respondent no.1 in accordance with law treating him not to be
a juvenile at the time of commission of the offence”.
26
In Dharambir vs. State (NCT of Delhi) & Anr. the question for
determination is whether or not the appellant, who was admittedly not a
juvenile within the meaning of the Juvenile Justice Act, 1986 when the

24
2010 (4) RCR (Criminal) 783
25
2010 (2) RCR (Criminal) 309
26
2010 (2) RCR (Criminal) 773

147
offences were committed but had not completed 18 years of age on that date,
will be governed by the Act of 2000 and be declared as a juvenile in relation to
the offences alleged to have been committed by him. In Ram Suresh Singh vs.
Prabhat Singh alias Chhotu Singh &Anr.27 respondent no.1 was facing trial in
Nava Nagar P.S. Case No.102 of 2003 on the charge of committing murder of
one Tribhuvan Singh. Appellant in the case was the uncle of the deceased. The
Principal Magistrate Juvenile Justice Board Patna vide order dated 3 August,
2005 held that “on the date of occurrence age of respondent no.1 was more
than twenty years. In this case, however, the documents produced by
respondent no.1 were not found to be forged, fabricated or otherwise
inadmissible in law. If a document is proved to be genuine and satisfies the
requirement of law, it should be, subject to just exceptions, relied upon.”
In Mohan Mali &Anr. vs. State of M.P28 The Supreme Court observed: “In the
facts of this case, we are faced with a situation where the juvenile Dhanna Lal,
was a minor on the date of commission of the offence, and has already
undergone more than the maximum sentence provided under Section 15 of the
2000 Act, by applying the provisions of Rule 98 of the 2007 Rules r/w
Sections 15 and 64 of the 2000 Act, we allow the appeal as far as he is
concerned and direct that he be released forthwith. The bail application filed
on his behalf is also disposed of, accordingly.”
In Lal Mohd. vs. State29, The court held that “school record in this situation
loses much of its evidentiary value. The court relied on the opinion of the
Medical Board which opined that the petitioner was more than 21 years of
age.”
In Parameswarn vs. State of Kerala30, juvenile was sentenced to one year
rigorous imprisonment. He challenged his conviction in the Kerala High

27
2010(1)RCR (Criminal) 245
28
2010 (2) RCR (Criminal) 839
29
1l9 (2005) DLT 353
30
2004(2) KLT 1140

148
Court. The H.C upheld the conviction but set aside the sentence. It was
observed that “Benefit which could be given to a convict, shall also be
extended to an under trial as well. Of course, for the commencement of the
trial 1986 Act has to be applied, but as the Act of 2000 has been enforced,
before its termination, necessarily, when the sentence was imposed, the trial
Court was bound to follow the provisions contained in the Act 2000”.
In case of Munshi Khan vs. State of Rajasthan,31 appellant was arrested on the
charges of murder. His case was committed to the Court of Session. During
his trial at the Sessions Court, he filed an application under section 49 of the JJ
(Care and Protection of Children) Act of 2000 with a prayer that on the date of
incident he was below the age of 18 years as indicated by the transfer
certificate issued by Upper Primary School. He further made a request that an
inquiry in respect of his age be conducted as per provisions of Act of 2000.
The Additional Sessions Judge rejected the application and appeal filed and
the High Court held that:
“It has become a settled principle of law that the plea of minority under the
Juvenile Justice Act, 2000 may be taken at any stage of the case, even in
appeal and the minority of the concerned offender has to be determined on the
date of occurrence and not on the date when he appears before the Court or
even though he becomes major dining the course of trial. This being the
position of law, the findings of the Additional Sessions Judge are erroneous
one on the point that the plea about the age was not taken by the accused at the
time when his bail application was heard. From that point of view also the
impugned order cannot be sustained. It is the duty of the court to determine the
age, if there was any doubt in the mind of the court about the genuineness of
the transfer certificate given by the school, the court must itself remove that
doubt after calling of the original record from the school as it was the duty of
the court to get it verified. The Additional Sessions Judge neither called for the
original record from the school nor called for the person by whom the transfer

31
2004 (110) CRLJ 3465 -RAJ

149
certificate was issued, therefore, the court failed in discharging its obligatory
duties”.
In RatanLal @ Ram Ratan vs. State of Rajasthan, 32 It was observed by the
High Court:
i. No inquiry was made with regard to determination of age of the
petitioner and the Magistrate before whom the petitioner was produced
had not exercised powers vested in him under section 7 of the Act of
2000. Instead of forwarding the petitioner along with the record to the
competent authority having jurisdiction over the proceeding he
committed the case to the trial court. The trial court also did not make
any inquiry with regard to the age as no such objection or application
was made before that court.
ii. Petitioner has placed on record a certified copy of the bail order passed
by the Add. Sessions Judge, Behror from which it is evident that being
born on 2-9-1984, the petitioner was less than 18 years of age on the
date of occurrence i.e. 5-4-2002 and he appeared to be a child or a
juvenile. The law does not envisage trial of such an accused by the
court below. He can be tried by the Principal Magistrate, Juvenile
Justice Court. Thus, the trial by the Sessions Court against a juvenile
stands vitiated because of the inherent lack of jurisdiction to conduct
trial against the juvenile‟ or the 'child'.
iii. The trial court was empowered under section 6(2) of the Act of 2000 to
conduct the inquiry in accordance with the provisions of section 49 of
the Act of 2000 with regard to the determination of age of petitioner.
The trial court has taken the view that such an objection could not be
raised at the stage of trial particularly at the far end of the trial, though,
the provisions with regard to holding due inquiry about the age of a
person who appears to be a juvenile or the child are mandatory.

32
2004 Cr.L.J. (Raj) 734

150
 iv. In the instant case, it is evident that the plea of juvenility was raised
even at the initial stage of bail and petitioner was granted bail on the
ground of his being a juvenile. In this view of the matter, therefore, the
order passed by the Court below cannot be sustained and deserves to
be quashed so far as the petitioner is concerned. Consequently, petition
was allowed.
In Mahendra Singh vs. State of Rajasthan,33 the court held that the appellant
faced trial for having committed murder. Trial judge convicted and sentenced
him life imprisonment. The appellant contended, on the date of the incident he
was less than eighteen years of age and as per the JJ (Care and Protection of
Children) Act, 2000, he was juvenile, and, therefore, in view of Section 20 of
the JJ Act he could not have been sentenced.
In Parmod Kumar Sethi vs. State of Orissa, 34 Following observations were
made by the court,
i. The enquiry as to the age of the juvenile has to be made when he is
brought or appears before the competent authority and the Police
Officer or a Magistrate
ii. The competent authority then shall proceed to hold enquiry as to the
age of that person for determining the same by reference to the date of
the appearance of the person before it or by reference to the date when
the person was brought before it under any of the provisions of the
Act.
iii. The date of the commission of the offence is irrelevant for
Forming out whether the person is a juvenile within the
meaning of clause (i) of Section 2 of the Act. The crucial date
for determining the question whether the person is a juvenile is
the date when he is brought before the competent authority.
Arnit Das decision relied on.

33
2004-(l10)-CRLJ -1606 -RAJ
34
ibid

151
In Hemal Mian vs. State of Jharkhand, 35 the petitioner submitted that he been
falsely implicated in the case and he is a juvenile and the Court below did not
consider the case of the petitioner though the petitioner is a juvenile. The
Jharkhand High Court sent back the case to the concerned court for
determination of the age of the petitioner and directed the concerned court to
pass a fresh order in view of decision arrived at.
In Motilal Hansda vs. State of Bihar, 36 the appeal was directed against the
judgment of the Additional Sessions Judge, Godda convicting the appellant
and sentencing him to undergo rigorous imprisonment for 2 years. The
appellant submitted that a copy of the certificate duly attested by the Principle
of the School was produced to show that appellant's date of birth was 9th
August. 1975. Accordingly, he was aged I5 years and l0 months at the time of
alleged occurrence i.e. l0.6.l990.
The High Court held “after going through the order of refusal of trial court and
certificate produced by the appellant, he was discharged from bail bonds.
Appellant was not sent to Juvenile Court, as he had crossed the age of
juvenile”.

37
In case of Girish vs. State of Kerala, the concurrent verdict of guilty,
conviction and sentence imposed on the Petitioner - accused under Section
394 IPC were assailed by him in this revision petition on the ground that he
was a juvenile and for proving the same he took the help of a certificate issued
by the Head Master of the School, where he was studying. This certificate
stated that the petitioner-accused was a juvenile (born on 03.05.1974) on the
date of the crime-night of 20.5.1989, hence below the age of 16 years and a
juvenile”. The prayer was made to quash the entire proceedings before the
courts below. It was held by the court that “the finding that the petitioner is

35
2004-(110)-CRLJ -1503Jha
36
2004 (4) JCR 171 (Jhr)
37
2004(1) KLT 419

152
guilty of the offence alleged against him is eminently correct and does not call
for interference by invoking the revisional jurisdiction of superintendence and
correction vested in this Court”.
To avoid a vacuum and to ensure ends of justice, it can certainly be held that
“until a JJB is constituted in accordance with the Juvenile Justice Act, 2000
and the Rules promulgated, all Judicial First Class Magistrates or all Chief
Judicial Magistrates shall be competent to exercise functions of the JJB.
Considering the fact that in Kerala, the Chief Judicial Magistrates sitting alone
used to discharge functions of the Juvenile Courts under the Juvenile Justice
Act. 1986, it can certainly be held by invoking powers under Section 482 Cr.
P.C ., that the Chief Judicial Magistrates must exercise such functions of the
JJB to be constituted under Section 4 of the Juvenile Justice Act, 2000. Until
the Boards are constituted the only safety valve is to stipulate that the Chief
Judicial Magistrates shall have to exercise such functions.”
In Khunnu Yadav vs. Rajesh Maurya and another 38, respondent claimed to be
juvenile on the date of the occurrence. The trial court got him medically
examined and the medical report showed that he was 19 years. He was
therefore held not to be juvenile. But when he filed revision petition in the
high court and produced certificate from the school which proved he is
juvenile, high court declared him to be juvenile. Against this decision,
appellant brother of the deceased, murdered by respondent, approached the
Apex Court. The Apex Court allowed the appeal and held that “the crucial
date for determining the status as juvenile is the date when he is brought
before the competent authority and not the date when the offence is
committed. Since in this case, accused moved the application for determining
his status as juvenile after he attained the age of 16 years, he cannot be treated
as juvenile.”

38
2003 (10) SCC 291

153
 In Om Prakash (alias Raju) vs. State of Uttraanchal 39, regarding the age of the
appellant, a contention was raised that he was juvenile at the time of
commission of crime. No proof was however adduced in support of this. Also,
the high court noted that “he had opened the bank account in Punjab National
Bank at Dehradun. Relying on this bank account both High Court and the trial
court took the view that the appellant would not have been in position to open
the account unless he was a major and declared himself to be so”. In the
Supreme Court, appellant challenged this view. The Supreme Court dismissed
his appeal and held that “the approach of the trial court as well as the high
court on this aspect cannot be faulted.”
ln Surinder Singh vs. State of U.P40, the Supreme Court observed that “when
no plea is raised by accused that he is juvenile, then the Court on its own is not
required to determine the age of the accused in absence of such plea.”
In case of Vikrant Kumar Alias Sonu vs. State of U.P. and another 41 , a
complaint was lodged against the applicant for an offence under Section 377,
511 I.P.C. When the charge sheet was submitted in court the applicant claimed
himself to be a juvenile and sought the benefit of Juvenile Justice Act thereby
desired to be tried by a Juvenile Judge.
The High Court allowed revision and set aside the appellate Court‟s order.
The applicant was declared a juvenile and observed that:
i. The Complainant‟s contention was that the trial judge erred in not
making a serious endeavour to call for the record from the National
Inter College, Badhalganj Born. The High Court held that the approach
of the juvenile court cannot be termed in any manner perverse or
prejudicial to the interest of the complainant.

39
2003 (1) SCC 648
40
2003 (10) SCC 26
41
2003 Cr. LJ 1094

154
 ii. The court held that failure to file any response to an affidavit makes it
clear that the complainant had been manipulating the evidence against
the applicant.
iii. Submission that the applicant appeared in High School Examination
from National Inter College, Badhalganj in the past and failed was held
to be a device used by the complainant to defeat the claim of the
applicant.
iv. Medical opinion varies by two years either way and as the law stands
the interpretation of the beneficial provisions to the accused should be
adhered to by the court strictly.
In Bhupendra and Others vs. State of U.P.42 three appellants were convicted
and sentenced to life imprisonment for murder of two persons. It was held “to
be simply a desperate attempt to get away from legal consequences of serious
crime committed by him.”
In Vijai Singh and Another vs. State of U.P. and Another 43
, the court
considered the fact and held that the revision filed against the order of
Additional Sessions Judge, Fast Track Court Agra rejecting the application of
revisionist for holding them juvenile and sending the case to the Juvenile
Judge was dismissed by the high court on the ground that the relevant date for
the purpose of considering the question of juvenile would be either the date on
which the offence was committed or on the date when the offender was
brought to the Court or before the competent authority. Neither on the date of
commission of offence nor on the date of their surrender they were juvenile as
per the Juvenile Justice Act 1986, and therefore they were denied benefits of
section 20 of the new Act of 2000 holding that the position with regard to the
pending cases is made clear enough which shows that if any trial is pending on
the date of enforcement of the new Act, the proceedings shall be concluded
under the provisions of the old Act. This provision has been made regarding

42
2003(109) Cr. L.J. 3921
43
2003(109) Cr. L.J. 3461

155
the proceedings in respect of a juvenile but it does not say that a person not
held to be juvenile under the old Act can be treated juvenile by the new Act if
he is below the age of 15 years.
In case of Master Rajeev Shankar Lal Parmar & another vs. Officer-incharge,
Police Station, Malad and Others44 as per facts, a First Information Report
was filed against accused for offences punishable under section 302 and 307
of the Indian Penal Code. The case was committed to the Sessions Court.
Though petitioner had stated his age to be 22 years and accordingly was
arrested and kept as under trial prisoner, Sessions Judge found him to be much
younger than 22 years and ascertaining after an inquiry that he was below is
years. Remanded his case to the Juvenile Justice Board (JJB). In spite of these
directions, accused-petitioner was neither shifted to the Observation Home nor
was his case placed before the JJB. On the other hand, the state challenged
directions of Sessions Judge stating that section 49 of the Act of 2000 does not
permit him to record findings as to age of the accused and pass an order on
that basis. Public Interest Litigation was filed in the Bombay High Court on
behalf of accused petitioner to declare the petitioner's incarceration in Mumbai
Central Prison unlawful and in violation of the Juvenile Justice (Care and
Protection of Children) Act, 2000 and the Constitution of India and with many
other directions.
It was held that “Sessions Judge can hold an inquiry as to age of accused on
his own under section 49 of the Act of 2000. Once it is established that
accused is juvenile, he should be immediately shifted to observation home and
his case should be transferred to the JJB. No time should be lost in taking such
steps and if any time is lost and accused Juvenile has to suffer, he should be
compensated by the state.”
Application filed by the state challenging the order of Sessions Judge was
dismissed. Respondents were directed to take immediate steps to shift accused

44
2003-(109) CRLJ - 4522-BOM

156
petitioner to the Observation Home and to produce him before the JJB.
Respondent was ordered to pay compensation to petitioner of an amount of
rupees 15,000/- and observing that:
1. Keeping in view the provisions of the Act and the ratio laid
down by the Supreme Court in GopinathGhosh vs. State of
West Bengal, SheelaBarse v. Union of India, and Bhola Bhagat
vs. State of Bihar, the Additional Sessions Judge can exercise
the power to hold an inquiry and record a finding as to the age
of the accused.
2. Regarding compensation to petitioner, it is an admitted fact that
the order was passed by the Additional Sessions Judge on 7th
March, 2003 and the order was received by the Thane Jail
Authorities on the same day i.e. on 7th March, 2003. However,
because of non-availability of police escort, the order could not
be implemented and petitioner could not be shifted to the
Observation Home nor he could be produced before the JJB. It
is thus clear that without there being any fault on the part of the
accused, he was kept in prison, firstly at Thane and then in
Mumbai. Therefore, his prayer for payment of compensation
must be upheld. In the facts and circumstances, therefore, ends
of justice would be met, if the respondent-State is ordered to
pay to petitioner an amount of compensation of Rs.15,000/-.
In Mohammed Arif vs. State of Rajasthan,45 the High Court found that “the
A.C.J.M. did not take into consideration the opinion given by the Medical
Board which opined that the age of the accused petitioner was between I6 to
18 years also. He mainly based his findings on the basis of the age of the
accused petitioner as stated in the Voters-list and on observation of his
physical appearance in the Court. He neither allowed an opportunity to cross-
examine the witnesses nor considered the material evidence available on the

45
RLW 2003(2) Raj 867

157
record. Consequently, the High Court set aside the order of ACJM and
directed the Additional Sessions Judge to complete the inquiry regarding the
age of the accused petitioner on the date of occurrence after giving opportunity
of hearing to both the parties and decide the same afresh as far as possible
within a period of one month from the date of receipt of a copy of this order.”
In Manjyoti vs. State,46 after lodging of FIR against accused petitioner his
father filed an application for making an entry in the birth register regarding
the birth of accused-petitioner, alleging therein that his son is a juvenile/minor.
Furthermore except the oral evidence, there was nothing else on the record to
show that the accused-petitioner was a juvenile at the relevant time. On the
other hand, the ossification test showed that accused-petitioner Manjyoti was
not a juvenile. Furthermore, it was brought to the notice of the Court that
Manjyoti had appeared as a prosecution witness in a Sessions trial in which he
had given his age as 21 years on the date when he had appeared as a witness in
the said Sessions case. Hence the Courts rightly come to the conclusion that no
reliance could be placed on the birth entry in question and on the basis of the
said birth entry, the accused-petitioner could not be declared as a juvenile.
In Lallan Singh vs. State of U.P. and Another 47 , the Sessions Judge,
Chandauli, held that “the new Act received the assent of the President of India
on December 30, 2000 and was published in the Gazette Extra-Ordinary, on
30 December 2000, therefore, the commencement of the Act was from 30-12-
2000. Holding same, he extended the benefit of new Act to the accused
declaring him as juvenile under Juvenile Justice (Care and Protection of
Children) Act, 2000. The high court in revision reversed the order of the
Sessions Judge, noticing that the new Act came into force on April 1, 2001.”
In State of U. P. vs. Ram Bharat and others etc.48, as per facts, a shocking
crime in which nine persons lost their lives on account of homicidal act, 53

46
2002(108) CRLJ 2777 P&H
47
2002 Cr.L.J. 1242 (A11)
48
2002 Cr.L.J. 1529 (All)

158
person were prosecuted. Out of them two died during the trial, surviving 51
accused persons were put up for trial. 25 accused persons were convicted on
various counts and sentenced to varying prison terms. The remaining 26 were
acquitted. Against the order of acquittal the State has preferred an appeal. Out
of the convicted accused two died during the pendency leaving only 23
surviving convicted appellants. Out of 23 convicted appellants, three
convicted accused persons were minors at the time of the incident and,
therefore, entitled to the benefit under the provisions of the U.P. Children Act,
1951. It was urged on their behalf that they are entitled to get the benefit of the
provisions of the U.P. Children Act 1951. State on the other hand placed
reliance on the decision of the Apex Court in the case of Arnit Das vs. State of
Bihar and urged that from a composite reading of the provisions of Sections 3,
8, and 32 of the Juvenile Justice Act, 1986 it would be apparent that the
juvenility of an accused is to be determined with reference to the date which
he was brought to the Court or the Competent Authority.
The Court did not accept the stand taken by the State. It did not rely on Arnit
Das decision holding that “there are catena (series) of decisions of the Apex
Court as well as other High Courts by which it is well established that
juvenility of an accused or his age has to be determined with reference to the
date of the offence.” In this case no evidence either documentary or oral was
led at any stage of the trial to indicate that three accused were below 16 years
of age on the date of the incident. The Court, therefore, relied on the age as
disclosed by them in their statements under Section 313, Cr. P.C. which was
less than 16 years of age on the date of the incident and consequently, they
were held to fall within the ambit of expression „child‟ as defined in Section
2(4) of the U.P. Children Act. Section 2T of the said Act prohibited sentence
and imprisonment for any term to an accused who was a „Child‟ as
determined on the date of occurrence. Each one of the three accused persons
who fall in the category of „child‟ within the meaning of Section 2(4) of the
U.P. Children Act was at the time of this appeal being more than 40 years of
age, were not

159
sent to any approved school or Children's Home under the provisions of the
said Act for being detained there. Therefore, the sentence of imprisonment
imposed upon these three accused persons was quashed.
In Rajinder Chandra vs. State of Chhattisgarh and anr 49, as per fact, accused
was apprehended for an offence under section 302/34 of the Indian Penal
Code. He claimed himself to be a juvenile as having not attained the age of 16
years and, therefore, entitled to the benefit of the Juvenile Justice Act, l986.
An enquiry was held. And trial court as well as Sessions Court held that he
was not juvenile. Both the trial court and the Sessions Court scrutinized the
evidence adduced on behalf of the accused by applying the principle that it
was the accused who was claiming the benefit of the Juvenile Justice Act and
therefore, the onus lay on him to prove that he was a juvenile and inasmuch as
the oral and documentary evidence adduced by him left open room for doubt,
the onus could not have been said to have discharged. The accused was also
subjected to radiological examination. In ossification test report, he was
opined to be of l5-16 years of age. The Sessions court, by reference to Modi`s
Medical Jurisprudence, held that “a variation of 2 to 3 years on either side was
permissible in the result of ossification test, and therefore, on the basis of such
test no definite opinion could be formed”. Petitioner thereafter approached the
high Court of Madhya Pradesh. The High Court, in exercise of its revision
jurisdiction, found the findings of both the court below it to be legally infirm
and hence not sustainable and noticed that though in the mark sheet of class
VIII of accused there appeared to be some overwriting but the same was
attested by the officer who had issued it. The high court held him to be
juvenile. Against this judgment of the High Court, victim‟s father preferred
special leave petition before the Supreme Court of India. The apex Court
dismissed the appeal and agreed with the stand taken by the High Court.

49
AIR 2002 SC 748

160
 50
In Kalinath Munda vs. State of Bihar the apex Court held that “it is
impossible to undertake an inquiry and held that extrapolation of age at the
time of occurrence from age mentioned in judgment of Sessions Court is not
by itself enough. However, appellant was permitted to approach State
Government for commutation of sentence under Criminal Procedure Code.”
In Jitendra Ram @ Jitu vs. State of Jharkhand,51 The Court observed that when
the offence was committed, since the Juvenile Justice Act. 1986 had not come
into force, the provisions thereof would have no application; the Bihar
Children Act, 1982 was, however, applicable in this case. In terms of the
provisions of the said Act, a child means a boy who has not attained the age of
16 years. The Children Court was to be constituted under Section 5 of the Act,
but it is not in dispute that such court had not been constituted at the relevant
time.
The provisions of Juvenile Justice (Care and Protection of Children) Act,
2000, it appears, have been given effect to in the State of Jharkhand only in or
about July 2005. Before the trial court, the appellant did not raise any plea that
he was a Juvenile. It is true that such a plea was raised while moving an
application for bail for the first time; but from a perusal of the order passed by
the Patna High Court dated 06.05.1986, it would appear that the ground that
the appellant was a child itself was not the only one on which the order
granting bail to the appellant was passed.
The appellant was examined under Section 313 CrPC. where his age was
estimated to be 28 years. The said estimated age was recorded by the trial
court again on 09.04.1999 being 28 years. In the judgment of the trial court
again the aforementioned age was mentioned. In absence of any plea having
been taken by the appellant, it is not disputed, that the court at no stage had
gone into the question as regard the age of the appellant.

50
2001 (9) SCC 228
51
(In the Supreme Court of India, Criminal Appeal No. 489 of 2006 [Arising out of S.L.P.
(Crl).No. 3494 of 2005]. Decided On: 25.04.2006)

161
 The provisions of a beneficial legislation should ordinarily be given effect to.
However, we may notice that the appellant is literate. Presumably he attended
some school. However, no certificate of his date of birth or any other proof as
regard his date of birth is available on records. No other material apart nom
the estimate of the court has been brought to our notice. In the absence of any
material on record, we cannot arrive at a definite conclusion that the appellant
as on the date of commission of the offence was a child within the meaning of
the said Act.
52
In Sushil Kumar vs. Rakesh Kumar, the Supreme Court as regards
determination of age of a candidate in terms of Section 36(2) of the
Representation of the People Act, 1951 observed:
“The age of a person in an election petition has to be determined not only on
the basis of the materials placed on record but also upon taking into
consideration the circumstances attending thereto.”
In Updesh Kumar and Ors. vs. Prithvi Singh and Ors, 53 the Supreme Court
relied on the matriculation certificate holding that the correction of the date of
the birth in the certificate was an official act and the must be presumed to have
been done in accordance with law.
In Umesh Chandra vs. State of Rajasthan,54 a register maintained by a public
school of repute was produced. The Court relied thereupon, opining that
Section 35 cannot be read with Sections 73 and 74 of the Evidence Act. If a
public school maintains a register in ordinary course of business the same
would be admissible in evidence.
In Bhoop Ram vs. State of U.P.,55 appellant was treated to be a child within
the meaning of Section 2(4) of the Act; upon taking into consideration three
factors:

52
MANU/SC/ 0826/ 2003
53
MANU/SC/0040/200l
54
MANU/SC/0125/l982
55
MANU/SC/0070/l989

162
 (i) that the appellant had produced a school certificate and
correctness whereof was not questioned;
(ii) the trial Judge thought it fit to award the lesser sentence of
imprisonment for life instead of capital punishment when he
pronounced the judgment on 19.09.1977 on the ground that the
appellant was 17 years of age which gave credence to the
appellant's case that he was less than 16 years of age on
03.10.1975 when the offences were committed; and
(iii) although he was medically examined, for determination of age,
the doctor based his opinion only on an estimate and possibility
of an error of creeping into the said opinion could not be d out.
The Court, therefore, took into consideration on more than one
factor in accepting the plea of the appellant therein that he was
minor on the date of commission of the offence.
In Hema Ram and Ors. vs. State of Raj. andAnr, 56 issue was whether school
record is admissible under section 35 of the Evidence Act for age
determination of a juvenile?
The court relying on the case of Birad Mal Singhvi vs. Anand Purohit held
that “school records are admissible as evidence provided genuineness of the
document is proved by the school authorities. Further the documents need to
be maintained in due course of business”. The court made following
observations:
If the entry in the scholars register regarding date of birth is made on the basis
of information given by parents, the entry would have evidentiary value but if
it is given by a stranger or by someone else who had no special means of
knowledge of the date of birth. Such an entry will have no evidentiary value.
Merely because the documents such as extract of School Register, mark list or
certificate of Education Board etc. are proved, it does not mean that the
contents of documents are also proved. Mere proof of such documents would

56
RLW 2006(l) Raj 476

163
not tantamount to proof of all the contents or the correctness of date of birth
stated in the documents.
Academic documents for the purpose of admissibility under section 35 of the
Evidence Act, need to be officially testified and maintained in due course of
the business. The mere fact that they have been certified by an authority does
not prove the contents of the certificate, but it has to be proved that its contents
are based on the information given by the parents.
In Budhan Thakur @ Mithilesh Thakur vs.The State of Bihar57, the High
Court held that “it is a fit case in which the claim of the petitioner deserves to
be examined by the Juvenile Justice Board in accordance with law. Prior to the
Act of 2000 coming into force, the Juvenile Justice Act of 1986 was effective.
The 1986 Act provided that juvenile would mean a boy who had not attained
the age of16 years or the girl who had not attained the age of 18 years. The
Act of 2000 has increased the age of juvenile from 16 to 18 years. Since the
offence took place after the Act of 2000'come into force, the provisions of the
Act of 2000 would be applicable and the appellant have to be tried in
accordance with the provisions of the Act of 2000 only.”
58
In Satbir Singh and Ors.vs. State of Haryana, The Court observed that
Section 2(h) defences „Juveni1e‟ means a boy who has not attained the age of
16 years or a girl who has not attained the age of 18 years. As per his own
statement accused was 17 years of age as on 13.6.1989, therefore, he is not
entitled to the benefit of Juvenile Justice Act, 1986.
In S.D. Pawan vs. State by Hebbagodi Police 59 , it was held that the idea
behind the new Act is to make Justice System meant for juveniles more
appreciative of the developmental needs in comparison to criminal justice
system as applicable to adults.

57
MANU/BH/00l2/2006 High Court of Patna, Cr. Misc. No. 13896 of 2005, Decided On:
58
JT 2005 (8) SC 394
59
ILR 2006 KAR 1570

164
And recently in 2016 in case titled Sunita Rani vs. State of Punjab and anr 60,
the issue was determination of age of juvenile because the matriculation
certificate and the certificate issued by the Registrar, Birth and Death, the date
of birth is different.
The present revision petition has been filed to challenge judgment dated
02.07.2015 passed by the Sessions Judge, Pathankot dismissing the appeal
filed against order dated 18.05.2015 passed by Principal
Magistrate, Juvenile Justice Board, Pathankot.
FIR No.11 dated 07.12.2015 was registered under Section 376 of Indian Penal
Code and Section 4 of the Protection of Children from Sexual Offences Act,
2012 against respondent No.2. However, respondent No.2 was juvenile at the
time of occurrence as his date of birth in the matriculation certificate was
recorded as 29.01.1997. He was less than 18 years of age on the date of
occurrence i.e., 07.12.2015. Respondent No.2 was sent to Observation Home,
Hoshiarpur vide order dated 18.05.2015 as he was declared juvenile under
Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007
(hereinafter called as 'Rules 2007').
Aggrieved by said order dated 18.05.2015, the petitioner-complainant filed an
appeal before the Sessions Judge, Pathankot and the same was dismissed on
02.07.2015, which is subject matter of challenge in the present revision
petition.
Leaned counsel for the petitioner submits that both the Courts below have
ignored the certificate issued by the Registrar, Births and Deaths. The date of
birth mentioned in the matriculation certificate is different from the certificate
issued by the Registrar, Births and Deaths. Learned counsel further submits
that in case, the date of birth mentioned in the certificate issued by the
Registrar, Birth and Death, is considered, then accused-respondent No.2 does
not fall within the definition of Juvenile as the issue is in conflict with law.
The case where the issue relating to child or juvenile is in conflict with law,

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165
then it is to be referred to the Board or Committee as the case may be as per
provisions of Rule 19 of the Rules 2007. In the present case, the date of birth
of respondent No.2 in the matriculation certificate is different from the birth
certificate and as such, as per provisions of Rule 19 of the Rules 2007, it
should have been referred to the Board or Committee. Learned counsel also
submits that an application was also moved under Rule 12(3) of the Rules
2007 but the same has not been decided so far. Learned counsel for the
petitioner has also relied upon Division Bench judgment of this Court
in Ambika Kaul vs. Central Board of Secondary Education and others 61, in
support of his contentions.
Learned counsel for respondent No.1 - State submits that the age of accused-
respondent No.2 was less than 18 years at the time of occurrence and he was
declared juvenile under Rule 12 of the Rules 2007. A detailed finding has been
given by the Appellate Court also and no interference, therefore, is required.
Heard arguments of learned counsel for the petitioner as well as learned State
counsel and have also perused the order passed by the Sessions Judge,
Pathankot as well as order passed by Principal Magistrate, Juvenile Justice
Board, Pathankot.
Admittedly, as per date of birth mentioned in matriculation certificate,
accused-respondent No.2 was juvenile at the time of occurrence but in case,
the date mentioned in the birth certificate i.e., 09.05.1996 is considered, he
was major.
The issue for consideration before this Court is whether entry in the birth
certificate will prevail in case; the same is in conflict with the date of birth
recorded in birth certificate or matriculation certificate. No doubt, entry in
birth certificate is made on the asking of parents of the child immediately after
the birth. When a child is got admitted in the school, the date of birth is
informed by the parents or the person, who goes to school for admission. In
case, the same is based on some document, then there is no conflict but in the

61
2015(3) SCT 350

166
present case, the date of birth recorded in the matriculation certificate is
different from the birth certificate. In case, the date of birth recorded in
matriculation certificate is considered, accused-respondent No.2 was
minor/ juvenile at the time of occurrence but in case, the date of birth
mentioned in the birth certificate is considered, then accused-respondent No.2
was not minor/ juvenile at the time of occurrence. If there is conflict with law,
procedure is mentioned in Rule 12 of the Rules 2007, which is reproduced as
under: -
Rule 12: Procedure to be followed in determination of Age.-
i. In every case concerning a child or a juvenile in conflict with
law, the court or the Board or as the case may be the
Committee referred to in rule 19 of these rules shall determine
the age of such juvenile or child or a juvenile in conflict with
law within a period of thirty days from the date of making of
the application for that purpose.
ii. The court or the Board or as the case may be the Committee
shall decide the juvenility or otherwise of the juvenile or the
child or as the case may be the juvenile in conflict with law,
prima facie on the basis of physical appearance or documents,
if available, and send him to the observation home or in jail.
iii. In every case concerning a child or juvenile in conflict with
law, the age determination inquiry shall be conducted by the
court or the Board or, as the case may be, the Committee by
seeking evidence by obtaining -
(a) (i) the matriculation or equivalent certificates, if available; and
in the absence whereof;
(ii) the date of birth certificate from the school (other than a play
school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority
or a panchayat;

167
(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above,
the medical opinion will be sought from a duly constituted
Medical Board, which will declare the age of the juvenile or child.
In case exact assessment of the age cannot be done, the Court or
the Board or, as the case may be, the Committee, for the reasons
to be recorded by them, may, if considered necessary, give benefit
to the child or juvenile by considering his/her age on lower side
within the margin of one year.
and, while passing orders in such case shall, after taking into
consideration such evidence as may be available, or the medical
opinion, as the case may be, record a finding in respect of his age
and either of the evidence specified in any of the clauses (a)(i),
(ii), (iii) or in the absence whereof, clause (b) shall be the
conclusive proof of the age as regards such child or the juvenile in
conflict with law.
iv. If the age of a juvenile or child or the juvenile in conflict with law
is found to be below 18 years on the date of offence, on the basis of
any of the conclusive proof specified in sub-rule (3), the court or
the Board or as the case may be the Committee shall in writing
pass an order stating the age and declaring the status of juvenility
or otherwise, for the purpose of the Act and these rules and a copy
of the order shall be given to such juvenile or the person
concerned.
v. Save and except where, further inquiry or otherwise is required, inter
alia, in terms of section 7A, section 64 of the Act and these rules,
no further inquiry shall be conducted by the court or the Board
after examining and obtaining the certificate or any other
documentary proof referred to in sub-rule (3) of this rule.
vi. The provisions contained in this rule shall also apply to those
disposed off cases, where the status of juvenility has not been

168
 determined in accordance with the provisions contained in sub
rule(3) and the Act, requiring dispensation of the sentence under
the Act for passing appropriate order in the interest of the
juvenile in conflict with law.
As per provisions of Rule 12(3) of the Rules 2007, in case, the Court is
concerned and determination of age of a child or juvenile is in conflict with
law, then an inquiry can be conducted by seeking evidence by obtaining the
matriculation or equivalent certificate, if available. In the absence of any such
document, the date of birth certificate from school first attended or in absence
thereof, the birth certificate issued by the corporation or municipal authority or
the panchayat. In presence of matriculation or equivalent certificate, the Court
cannot give reference to birth certificate issued by the authority.
In the present case, the date of birth is in conflict as in both the documents i.e.,
matriculation certificate and the certificate issued by the Registrar, Births and
Deaths, the date of birth is different.
The same issue was before the Delhi High Court in Harish Yadav Thru Shri
Raj Kumar Yadav vs. State62, as well as before this Court in Resham Singh v.
Union of India and another 63
, wherein it was held that “entry in birth
certificate would prevail in case of the circumstances of conflict between the
date of birth recorded in birth certificate and school leaving certificate”.
In the impugned order dated 02.07.2015 passed by the Sessions Judge,
Pathankot, it has been held that “in presence of matriculation or equivalent
certificates, the Court cannot give preference to birth certificate issued by
municipal authority as has been done in the present case. While recording
finding it has been mentioned that in case, the matriculation certificate of the
accused is available, then it has to be preferred and in the absence thereof, any
other document is to be considered.

62
2011(6) RCR (cri) 62
63
2008(1) RCR (cri) 158

169
During arguments, learned counsel for the petitioner submits that an
application has been filed under Rule 12(3) of the Rules 2007 and the same
has not been decided so far. Learned counsel also submits that in case, the
application is decided in accordance with the provisions of the Juvenile Justice
(Care and protection of Children) Act 2000 and the Rules, 2007, the petitioner
would be satisfied.
In view of the provisions as mentioned in the Act as well as Rules 2007, it is
apparent that an inquiry is to be conducted as per Rule 19 of the Rules 2007.
The application moved by the petitioner is still pending and the same has not
been decided as without taking any decision on the application and without
conducting any inquiry, respondent No.2 has been declared juvenile and order
declaring him juvenile has also been upheld by the Sessions Judge, Pathankot.
Accordingly, this revision petition is allowed and impugned order dated
02.07.2015 passed by the Sessions Judge, Pathankot as well as order dated
18.05.2015 passed by Principal Magistrate, Juvenile Justice Board, Pathankot
are set-aside with a direction to conduct necessary inquiry as per provisions of
law as mentioned above and pass necessary order after conducting proper
inquiry.

Jurisdiction of the Board/Court.

In Raghbir's Case64 the question for consideration before Supreme Court in
the appeal by special leave was whether a person is less than 16 years of
age and accused of offence under section 302 can get benefit of Haryana
Children Act.
The Apex Court noticed its earlier decision in another case65 and held that
“the trial of a child under the provisions of the Act was not barred.”
In case of Sant Das vs. State of U.P. and others 66 the principal issue was in the
absence of the setting up of the Juvenile Justice Board as per the requirement

64
Raghbir v. State of Haryana.1981 Cri.L.J. 1497.
65
Rohtas v. State of Haryana AIR 1979 SC 1938 : 1979 Cri LJ 1365.

170
of section 5 of the Juvenile Justice (Care and Protection of Children) Act,
2000, which authority should exercise the powers of the Board? After being
taken into custody for offence committed under section 302, IPC, the writ
petitioner had moved two applications, one for declaring him as a juvenile as
he was only 16 years 5 months and 4 days old on the date of the offence and
second for Bail. Sessions Judge, Fatehpur rejected both the applications on the
ground that the Sessions Court was not the proper forum for both reliefs and
petitioner should have first approached the Magistrate first under section 437
Cr.P.C. and only after its rejection before Sessions Judge under Section 439
Cr.P.C. Against this order writ petition was filed before the Allahabad High
Court. Petition was dismissed and the order of the Sessions Judge upheld. It
was observed that “where Board is yet to be constituted for conducting trial of
the juveniles, the proper forum that can exercise the powers of the Board
would be the Magistrate having jurisdiction under section 437 Cr.P.C. and not
the Sessions Court.”
In Ajit Singh vs. Union of India and Ors.67 petitioner joined the army on 15th
December, 2000. When he was posted in Rajasthan and there some offence of
theft was committed, a Court of Enquiry was ordered against the petitioner
and after recording of evidence, General Court Martial commenced and the
petitioner was sentenced to rigorous imprisonment for seven years and was
dismissed from his service. Thereafter the petitioner challenged the
proceedings of General Court Martial under the Army Act and prayed that the
conviction and sentence be quashed and he may be released from jail on the
ground that he was a juvenile at the time of commencement of offence and
therefore he could not be tried by the provisions of General Court Martial
under the Army Act.
The argument of the respondent that as the petitioner was recruited in the
Army, even though he was a juvenile, the Army Act will have the applicability

66
2003-(109)-CRLJ-3424-ALL
67
2004 Cri LJ 3994

171
and will override the provision of Juvenile Justice (Care & Protection of
Children) Act, 2000, was rejected and the Court held that “It cannot be said
that the Parliament while enacting the present Act of 2000 was not aware that
persons are recruited in the Army at the age of 16 years.” Therefore the
proceedings of the General Court Martial were quashed and the petitioner was
set free.
It was observed that: “the mere fact that the age has been enhanced to 18
years, irrespective of a boy or a girl and the Army Act is of the year 1950, it
cannot be said that the legislature wanted to keep persons who are under the
Army Act amenable to Army Act although they were juvenile under the
present Act. In that case a special exception was to be made under the present
Act. Therefore, we find no force in the arguments of the respondent that
Juvenile Act will have no applicability to the person governed under Army
Act. The reliance placed by the respondent on Article 33 of the Constitution of
India is also misplaced. Article 33 only authorize the Parliament in relation to
the members of the armed forces to determine to what extent any of the
Fundamental Rights can be restricted or abridged so as to ensure the proper
discharge of their duties and the maintenance of discipline among them.
Article 33 cannot be read to oust the applicability of Juvenile Justice (Care &
Protection of Children) Act, 2000 which is also an Act of Parliament and in
the absence of any exception provided in the said Act with regard to its
jurisdiction or applicability.”
In Raj Singh vs. State of Haryana 68 trial was quashed and the Court directed
that his trial should be conducted in accordance with the provisions of the
Juvenile Justice Act.
In re: Sessions Judge, Kalpetta (Kerala) 69 a Bench of the Kerala High Court in
dealing with an apparent conflict between the Juvenile Justice Act, 1986 and
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989,

68
(2000)6 SCC 759
69
1995 Cri.L.J.330

172
as to which would prevail over the other, held that the provisions of latter Act
would have no overriding effect over the provisions of 1986 Act.
In case of Sunil Kumar vs. State of Haryana70, the petitioner was an accused
in FIR No.233 dated 17.5.1990 registered under Sections 376, 366 and 201
IPC at P.S. Sadar, Hisar. He was accused of committing rape on the
prosecutrix on 16.5.1990, petitioner was sent to face trial for the aforesaid
offence and was convicted to undergo R.I. for 7 years under Section 376 IPC
along with other offences. A Criminal revision before High Court remained
unsuccessful and was dismissed. During pendency of the criminal appeal
before High Court, the petitioner made an application pleading that he was
juvenile at the time of commission of offence. The High Court disposed of the
appeal without considering the question of juvenility of the petitioner. On
dismissal of appeal, the petitioner preferred Special Leave Petition before the
Supreme Court which was also dismissed. Being unsuccessful, the petitioner
preferred a review petition before Supreme Court which came to upon
provision of Sections 7-A and 20 of the Juvenile Justice Act, 2000. The court
after considering the relevant provision held that the competent court has the
jurisdiction to pursue the juvenility of the petitioner irrespective of upholding
the conviction by the Supreme Court. It further held that the question of
juvenility can be decided by the court of Judicial Magistrate Ist Class, Judicial
Magistrate IInd Class and Executive Magistrates including the High Court
exercising the criminal jurisdiction.
In case of P.Deeptha and another vs. V.S.Chundrasekaran 71
the crucial
question that came up for the consideration was whether any proceeding could
be initiated against the petitioners - minor boy and his sister, who were
admitted to the benefit of the Partnership Firm run by their parents. The

70
2010 (4) RCR (Criminal) 414
71
2003-(109)-CRLJ -4660 -MAD

173
respondent initiated such proceeding under section 138 to 142 of the
Negotiable Act for dishonour of cheque issued by the Firm by way of security.
Keeping the fact in view that both petitioners being minor at the time of the
alleged commission of the offence, i.e., dishonour of cheque, petition calling
for quashing of the proceedings against the petitioners was allowed. The Court
held that “at the time of tiling of the complaint, petitioners were minors and
therefore, they are entitled to the benefit of the provisions of the Juvenile
Justice (Care and Protection of Children) Act,2000 particularly, section 17 of
the said Act, under which any proceeding initiated under Chapter VIII of the
Code of Criminal Procedure is not competent against a juvenile and no joint
proceeding of a juvenile could be held nor any juvenile could be charged with
or tried for an offence together with a person who is not a juvenile. If a
juvenile is accused of any offence, committed under Section 223 of the Code
of Criminal Procedure or any other law for the time being in force, but for the
prohibition contained in subsection (1), such juvenile and any person who is
not a juvenile, are charged and tried together, the Board taking cognizance of
that offence shall direct separate trials of the juvenile and the other person.
Under section I4l (1) of the Negotiable Instruments Act, if the persons
committing an offence under Section 138 is a company, every person who, at
the time when the offence was committed, was in charge of and was
responsible to the company for the conduct of the business of the company,
shall be deemed to be guilty of the offence and shall be liable to be proceeded
against and punished. The first petitioner is aged about 19 and is a school
going girl and though the liability attributed to her is a continuing liability.
Right from the time when the parties had transaction, the first petitioner
cannot also be reasonably construed to be liable since no valid materials have
been plated before this Court in proof of the requirement of the complaint that
she was either in charge of or responsible to the company for the conduct of
the business of the company and therefore, she cannot be deemed to be guilty
of the offence and is not liable to be proceeded against and punished in

174
accordance with the provisions of the N.I. Act, particularly within the meaning
of Section 141(l) of the N.I. Act. Therefore, the petitioners are not liable to
be prosecuted nor punished in accordance with the provisions of the N.I. Act,
much less under Sections 138 to 142 of the said Act, particularly in view of
the admitted fact that both the petitioners were minors at the time of the
alleged commission of the offence”. The Court laid down that under sections
17 and 18 of the Juvenile Justice (Care and Protection of Children) Act, 2000,
“no juvenile could either be proceeded against in accordance with the
procedures established by the Code of Criminal Procedure nor have the Courts
any competence to conduct any proceeding against the juveniles along with
non-Juveniles”.
Similarly, in Daljit Singh vs. State of Panjab 72, it was held that “Juvenile
Justice Act, 1986 is a complete Code in itself and has sweepingly overriding
effect on any other enactment of the State Legislature or Parliament viz, the
Cr. P.C. regarding inquiry/ proceedings or a trial against a delinquent juvenile
on any criminal charge.”
In Padmabari Dei vs. District Magistrate, Cuttack 73, the Orissa High Court
observed that Section 3 of the National Security Act, 1980, is the substantive
and enabling provision for passing detention order. It refers to the terminology
'any person'. Section 2(d) defines the word 'person' which includes a foreigner
also. In the absence of any exception, a juvenile also a person within the
meaning of National Security Act. Definition of the term 'person' as contained
in Section 3(42) of the general Clauses act also does not support the case of
the petitioner which defines the term 'person' as 'including any company or
association or body of individuals whether incorporated or not'. There is no
justification whatsoever to restrict the meaning of the term 'person' to a major
or a non-juvenile. The primary purpose and object of the National Security

72
1992 Cri.L.J 1051
73
1995 (3) CRIMES 156 (Ori)

175
Act is to apprehend certain variety of anti-social and subversive elements to
insure that by their activities larger interests of the citizens and society are not
imperiled. It is not meant to punish a man for having done something criminal
in the past- Keeping the above object of` the National Security Act in view,
there is no reason to restrict its operation only to a major. Such an
interpretation has the potentiality of defeating the object of the national
Security Act. Therefore, any person, whether he is major or juvenile, would
come within the net of the National Security Act, once the subjective
satisfaction about the prejudicial activities referred to in Section 3, thereof is
properly reached.
In case of Ramachandran vs. The Inspector of Police, Madras 74, it has been
held by the Madras High Court that a child below sixteen years cannot be
termed as „goonda‟ within definition of S.2(h) of Tamil Nadu Prevention of
Dangerous Activities of Boot-leggers, Drug offenders, Forest Offenders,
Goondas, lmmoral Traffic Offenders and Slum Grabbers Act, 1982 and
therefore, his detention under that Act would be unjustified. If a child is
detained as a goonda he is exposed to every such thing which Juvenile
Justice Act,1986 says he should not be exposed to, if he is branded as a
goonda in the sense that he has habitually committed or attempted to commit
or abetted the commission of offences punishable under Chapter 16 or Chapter
17 or Chapter 22 of the Indian Penal Code, a habit, he can form only if after
the commission of the first offence by him, he is not put to the care of a parent
or home, as the Juvenile Justice Act has contemplated to protect him from
evils. Since a juvenile is always in a special custody and that custody is
deliberately chosen by the Juvenile Justice Act, it is difficult to think that his
delinquency will make him a habitual offender and a goonda in that sense.
Authorities to be engaged in anti-social activities, it cannot be said that no
action should be taken against them, there should be more prompt action than

74
1994 CRI. L.J. 3722

176
in the case of a juvenile. He should be taken to proper custody under Juvenile
Justice Act, the detaining Authorities shall have the freedom to create a special
home for juvenile delinquents and juvenile delinquents can be detained in such
homes.
In Antaryami Patra vs. State of Orissa, 75 case the decision was overruled
because of decision of The Supreme Court in Raj Singh v. State of Haryana, 76
where the conviction the Supreme Court set aside the conviction and sentence
imposed upon the appellant and directed that the appellant should be dealt
with in accordance with the provisions of the Juvenile Justice Act 1986.
In Jagadish Bhuyan vs. State of Assam, 77 it was held that although both the
Juvenile Justice Act 1986 and TADA Act are special Acts, section 25 of the
TADA Act contains a non-obstante clause with a view to give TADA Act in
case of conflict, an overriding effect over the provisions in any enactment. The
Court reasoned that under the TADA Act, the terrorism has been treated as a
special criminal problem, that the Act creates a new class of offences called
Terrorist Act and Disruptive Activities which are too he tried exclusively by a
special Court called Designated Court by providing special procedure for trial
of such offences, and that when the language of section 25 of the TADA Act is
so clear, it cannot be said that TADA Act cannot overrode the Juvenile Justice
Act.
In Sher Zamir vs. State of Madhya Pradesh, 78 the applicant was prosecuted
under the NDPS Act in the Court of Special Judge (NDPS Act), Mandsaur. He
filed application stating that on the date of incident i.e., 31.5.99, he was below
18 year of age and therefore, he should he tried by the juvenile court. The
Special Judge (NDPS Act) Mandsaur held that charge-sheet was filed on ll-8-
99 and on that day the applicant was above l8 years of age, and therefore, he

75
1993 CRI L J 1908
76
MANU/SC/1380/1999
77
1992 CR1.L.J. 3194
78
2005(l) MP HT73

177
would not fall within the definition of juvenile. On this analogy, the Special
Judge dismissed the application. The applicant there upon filed revision in the
Madhya Pradesh High Court. Finding no substance in the revision tiled by the
applicant and it was dismissed. The Applicant was denied the benefit of the
J.J. (C&P) Act, 2000 because:
i. The incident had occurred on 31.5.1999, the applicant was arrested on
31.5.1999 and he was produced before the competent authority on
1.6.1999. On 1.6.1999 the applicant was above 16 years of age
according to his own school certificate and on that day the Act of 2000
did not come into force and the case of the applicant had to be dealt
under Juvenile Justice Act, 1986, which prescribes the age of juvenile
as 16 years.
ii. On 1.1.2001, the date of coming in to force of the Act of 2000, the
applicant was above 19 years. Therefore, on that day also, he was not
juvenile under the new J.J. (C&P) Act, 2000.
iii. Section 20 deals with the pending cases when the Act of 2000 came
into force. On that the applicant was above eighteen years of age and
therefore not eligible to get benefit of Section 20 of the Act, 2000.
Hon‟ble Supreme Court and various High courts have given authoritative
powers to the Juvenile Justice Board to deal with a juvenile charged with
commission of an offence. JJ Board has full jurisdiction to hold an enquiry
regarding the juvenile in conflict with law considering the provisions of
Juvenile Justice (Care and Protection of Children) Act, 2000. To ensure
complete segregation of the juveniles in conflict with law from adult
offenders, a joint trial of a juvenile should be prohibited with any other adult
offender even at the enquiry/trial stage. Now the Courts of Judicial
Magistrates, Executive Magistrates and also the High Court can decide the
question of juvenility during the proceedings of criminal jurisdiction.
However, once a person is declared to be juvenile then further proceedings

178
with regard to him in conflict with law are to be held by the Juvenile Justice
Board only.

Apprehension and Production of Juvenile

Keeping in mind the sensitivity of the issue of juvenile‟s apprehension and
detention; Juvenile Justice (C & P) Act 2015 has defined and imposed special
duties on the police. The following duties have been imposed on police by the
Act which are as follows.
i. When a „Juvenile in conflict with law‟ is detained by Police he shall
be put under the custody of the Special Juvenile Police Unit or the
designated Police Officer and within 24 hours the juvenile shall be
produced before the concerned Court.
ii. In every Police Station a Nodal Officer shall also appointed for
attending the calls from 'Woman & Child Helpline” and for
investigating cases relating to Child abuse. The „Woman & Child
Helpline‟ telephone number is 1091 (toll free). This telephone number
should be displayed on the Notice Board of all Police Stations.
iii. It is the duty of SHOs to ensure that only the designated officers
personally shall attend the cases involving child victims.
iv. Juvenile, who is arrested or in custody and is not released on bail by
Police Officer, shall be kept only in observation home until he can be
brought before a Board/Court.
v. Officer-In-charge of Police Station after arrest of a Juvenile shall
inform parent or guardian of the Juvenile and direct him to be present
at the board. Officer-in-charge of Police Stations shall inform
Probation Officer of such arrest to enable him to obtain information
regarding antecedents and family background of the juvenile.79

79
http:// chandigarhpolice.nic.in/juvenile.htm

179
In State of Bihar vs. Kapil Singh80, as per fact, a girl child namely Manti was
taken to the police station to get information from her about the names of the
offenders who had committed the murder in her presence. Manti was kept at
the Police Station and was repeatedly questioned. At about midnight, she is
alleged to have disclosed the names of the three culprits. Subsequently, Manti
and her mother were both produced before a Magistrate who recorded their
statements under Section 164, Criminal Procedure Code. Manti was allowed to
go home after her statement had been recorded by the Magistrate. The
Additional Sessions Judge accepted as true the evidence of Manti. He held that
“there was corroboration of her evidence with respect to at least two of the
persons. Consequently, he convicted all the three persons for the offence under
Section 302 IPC.” All the three persons were sentenced to imprisonment for
life for this offence. The three convicted persons appealed to the High Court at
Patna. The Bench held that it was not safe to base any conviction on the
solitary testimony of Manti and, consequently, they gave Kapil Singh benefit
of doubt, set aside his conviction and sentences, and acquitted him. This
criminal appeal was brought by special leave by the State of Bihar against the
acquittal of Kapil Singh. The crucial question to be determined was whether
the evidence of Manti can be relied upon for the purpose of convicting Kapil
Singh.
The Court held that “there is always the danger in accepting the evidence of a
witness if she is under some influence, or if she is coached to give out a
version by persons who may have influence on her. In this case the court
found the circumstances making her evidence unsafe. The court found police
was keeping this girl confined in the police station for many days. In the day-
time, she was allowed to come up to the door of the room, but was not allowed
to move away from the door. Each night she was shut inside the room and was
kept shut like that for five or six nights. Her mother was allowed only to visit

80
(1968) 3 SCR 810

180
her. The court expressed displeasure and surprise at this illegal confinement by
the police and held it to be against law and therefore rejected her testimony”.
In case of Munna and others v. State of Uttar Pradesh and others 81 a news
report was published in the Indian Express newspaper dated December, 2,
1981 alleging that certain juvenile under-trial prisoners in the Kanpur Central
Jail, are kept in the jail instead of sending them to children's home and they
were being sexually exploited by the adult prisoners. One young boy named
Munna was in agony because of his sexual use by the adult prisoners over
there and his condition was such that he could not even sit. Three writ
petitions were filed based on this news report in the Supreme Court and one
writ petition was filed by the Human Right Organization in the High Court of
Allahabad- seeking relief in respect of these juvenile under trial prisoners. The
High Court of Allahabad ordered “the Session Judge of Kanpur to visit
Kanpur Central Jail to investigate the whole matter. But Kanpur Central Jail
authorities within few days of publishing of news report and subsequent filing
of writ petitions transferred most of the under-trial prisoners to the Children's
Home, Kanpur on different dates and therefore when the Sessions Judge
visited the jail, he could not interview any of them.
The Supreme Court while disposing of three writ petition filed under Article
32, arising out of same facts, relied on the report made by the Session Judge to
the High Court of Allahabad. The Supreme Court took note of the fact that
when Sessions Judge went to Kanpur Central Jail, six juvenile were shifted to
children‟s home just before his visit. The court directed the secretary of the
U.P State Board of Legal aid and Advice, to immediately contact these six
children/juvenile after finding out their addresses either from the court
proceedings or from the jail records and take their statements with a view to
ascertaining what was the treatment meted out to them in the Kanpur Central
Jail and whether any of them was maltreated or sexually exploited?

81
(1982) 1 SCC 545

181
 It was observed by the court that Juvenile delinquency is, by and large, a
product of social and economic inequalities. Even if it is found that these
juveniles have committed any offences, they cannot be allowed to be
maltreated. They do not shed their fundamental rights when they enter the jail.
Moreover, the object of punishing being reformation, we fail to see what
social objective can be gained by sending juveniles to jails where they would
come into contact with hardened criminals and lose whatever sensitivity they
may have to finer and nobler sentiments. That is the reason why Children Acts
are enacted by the Uttar Pradesh Children Act, 1951. It is absolutely essential
in order to implement the provisions of the Uttar Pradesh Children Act, 1951
that children's homes or other suitable places of safety are set up by the
Government for the purposes of providing a place of detention for children
under the age of 16 years. No words we can use would be strong enough to
convey our feelings in this respect. A nation which is not concerned with the
welfare of its children cannot look forward to a bright future.
In Sheela Barse and anr. (I) vs. Union of India 82 petitioner under Article 32 of
the Constitution asked the Supreme Court to ensure the release of children
below age of 18 years those who detained in jails within different states of the
country, production of complete information of children in jails, information
as to the existence of juvenile courts, homes, schools and for a direction that
the District Judges should visit jails or sub-jails within their jurisdiction to
ensure that children are properly looked after when in custody as also for a
direction to the State Legal Aid Boards to appoint duty counsel to ensure
availability of legal protection for children as and when they are involved in
criminal cases and are proceeded against.
The Supreme Court then directed the District Judges in the country to
nominate the Chief Judicial Magistrate or any other judicial magistrate to visit
the District Jail and sub-jails in their districts for the purpose of ascertaining
how many children below the age of 16 years are confined in jail, what are the

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182
offences in respect of which they are charged, how many of them have been in
detention, whether they have been produced before the children's court or not
and, if so, when and how many times and whether any legal assistance is
provided to them. It was directed that this report should also state as to
whether there are any children's homes, remand homes, or observation homes
for children within their district and, if here are, he will inspect such children's
homes, remand homes or observation homes for the purpose of ascertaining as
to what are their conditions in which children are kept and what kind of
facilities are provided there. District Judges were directed to submit the
complete reports through Registrars of respective High courts or to the
Registrar of the Supreme Court.
Therefore, the Supreme Court directing the Registrar of all the High Courts to
ensure compliance with its order. The court made following observations:
i. It is an elementary requirement of any civilized society and it has been
so provided in various statutes concerning children that children should
not be confined to jail because incarceration in jail has a dehumanizing
effect and it is harmful to the growth and development of children. But
even so the facts placed before us, which include the survey made by
the Home Ministry and Social Welfare Department shows that a large
number of children below the age of 16 years are confined in jails in
various parts of the country. Article 39 (f) of the Constitution provides
that the State shall direct its policy towards securing that children are
given opportunities and facilities to develop in a healthy manner and in
conditions of freedom and dignity and that childhood and youth are
protected against exploitation and against moral and material
abandonment.
ii. If a child is National asset, it is the duty of the State to look after the
child with a view to ensuring full development of its personality. That
is why all the statues dealing with children provide that a child shall
not be kept in jail. Even apart from this statutory prescription, it is

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 elementary that a jail is hardly a place where a child should be kept.
There can be no doubt that incarceration in jail would have the effect
of dwarfing the developing of the child, exposing him to baneful
influences, coarsening his conscience and alienating him from the
society. It is a matter of regret that despite statutory provisions and
frequent exhortations by social scientists, there is still large number of
children in different jails in the country as is now evident from the
reports of the survey made by the District Judges pursuant to our order
dated 15th April, 1986. Even where children are accused of offences,
they must not be kept in jails. It is no answer on the part of the State to
say that it has not got enough number of remand homes or observation
homes or other place where children can be kept and that is why they
are lodged in jails. It is also no answer on the part of the State to urge
that the ward in the jail where the children are kept is separate from the
ward in which the other prisoners are detained. It is the atmosphere of
the jail which has a highly injurious effect on the mind of the child,
estranging him from the society and breeding in him aversion
bordering on hatred against a system which keeps him in jail. We
should therefore like once again to impress upon the State Government
that they must set up necessary remand homes and observation homes
where children accused of an offence can be lodged pending
investigation and trial. On no account should the children be kept in
jail and if a State Government has not got sufficient accommodation in
its remand homes or observation homes, the children should be
released on bail instead of being subjected to incarceration in jail.
iii. The problem of detention of children accused of an offence would
become much more easy of solution if the investigation by the police
and the trial by the Magistrate could be expedited. The report of
survey, made by District Judges shows that in some places children
have been in jail for quite long periods. We fail to see why

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 investigation into offences alleged to have been committed by children
cannot be completed quickly and equally, why the trial can not take
place within a reasonable time after the filing of the charge-sheet.
Really speaking, the trial of children must take place in the Juvenile
Courts and not in the regular Criminal Courts. There are special
provisions enacted in various statutes relating to children providing for
trial by Juvenile Courts in accordance with a special procedure
intended to safeguard the interest and welfare of children, but, we find
that in many of the States there are no Juvenile Courts functioning at
all and even where there are Juvenile Courts, they are nothing but a
replica of the ordinary Criminal Courts, only the label being changed.
The same Magistrate who sits in the ordinary Criminal Court goes and
sits in the Juvenile Court and mechanically tries cases against children.
It is absolutely essential, and this is something which we wish to
impress upon the State Government with all the earnestness at our
command that they must set up Juvenile Courts one in each district,
and there must be a special cadre of Magistrates who must be suitably
trained for dealing with cases against children. They may also do other
criminal work, if the work of the Juvenile Court is not sufficient to
engage them fully, but they must have proper and adequate training for
dealing with cases against juveniles, because these cases require a
different type of procedure and juveniles, because these cases require a
different type of procedure and qualitatively a different kind of
approach.
iv. Where a complaint is filed or first information report is lodged against
a child below the age of 16 years for an offence punishable with
imprisonment of not more than 7 years, the investigation shall be
completed within a period of three months from the date of filing of
the complaint or lodging of the First Information Report and if the
investigation if not completed within this time, the case against the

185
 child must be treated as closed. If within three months, the chargesheet
is fled against the child in case of an offence punishable with
imprisonment of not more than 7 years, the case must be tried and
disposed of within a further period of 6 months at the outside and this
period should be inclusive of the time taken up in committal
proceedings, if any.
v. Moreover, it is not enough merely to have legislation on the subject,
but it is equally, if not more, important to ensure that such legislation is
implemented in all earnestness and mere lip sympathy is not paid to
such legislation and justification for non-implementation is not pleaded
on ground of lack of finances on the part of the state. The greatest
recompense which the state can get for expenditure on children is the
building up of a powerful human resource ready to take its place in the
forward march of the Nation.
In Sheela Barse (II) and others vs. Union of India and Others 83 this case was
follow up of its earlier order made by the court which was not abided by
District judges. The court directed that :
i. The trial of children must take place only in the juvenile courts and not
in the regular criminal courts.
ii. It would be desirable if the Central Government initiates
Parliamentary legislation on the subject, so that there is complete
uniformity in regard to the various provisions relating to children in the
entire territory of the country. The Children's Act which may be
enacted by Parliament should contain not only provisions for
investigation and trial of offences against children below the age of 16
years but should also contain Mandatory provisions for ensuring social,
economic and psychological rehabilitation of the children who are
either accused of offences or are abandoned or destitute or lost.
Moreover, it is not enough merely to have legislation on the subject,

83
(1998) 3 SCC 632

186
 but it is equally important to ensure that such legislation is
implemented in all earnestness and mere lip sympathy is not paid to
such legislation and justification for non-implementation is not placed
on ground of lack of finances on the part of the state.
84
In Supreme Court Legal Aid Committee vs. Union of India and others
which was follow up of SheelaBarse (I), the court took note of the fact that
Juvenile Justice Act had come into force. Every District judge was therefore
directed to report to the Registry of the Supreme Court as to how many
juvenile homes, special homes, and observation homes have been set up as
required under section 9, 10 and 11 of the Juvenile Justice Act, 1986. The
court also took note of the fact that the number of children in regular jails was
the highest in West Bengal and Bihar.
In case of Master Rajeev Shankar Lal Parmar & another vs. Officer-incharge,
Police Station, Malad and Others,85 first Information Report was filed against
petitioner on 25th May, 2002 for offences punishable under Sections 302 and
307 of the Indian Penal Code. On 19th July, 2002, charge-sheet was submitted
before the Additional Chief Metropolitan Magistrate, 24th Court at Borivali,
Mumbai. In view of the fact that the allegations were in respect of the
commission of offences punishable under Sections 302 and 307, the case was
committed to the Sessions Court on 2nd August, 2002. Though petitioner
accused had stated his age as to be 22 years and accordingly arrested and kept
as an under trial prisoner, the Sessions Judge held that he appeared to be
„much more younger than 22 years‟ and accordingly, an order was passed to
remanding the accused to the Juvenile Justice Board and by an order dated 7th
May, 2003. The application was allowed. The Sessions Judge observed that
petitioner accused was born on January 8, 1986. Thus, he was a Juvenile under
13 years of age on the date of the incident. He was, therefore, ordered to be
transferred to Juvenile Court for consideration of his case by Juvenile Justice

84
(1989) 2 SCC 325
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Board constituted under the Juvenile Justice (Care and Protection of Children)
Act, 2000. The petitioner accused approached the - High Court as in spite of
the direction of the Additional Sessions Judge, the petitioner was neither kept
in Observation Home, nor his case was placed before Juvenile Justice Board
asking for following:
a to declare the First Petitioner's confinement in Mumbai Central Prison
at Arthur Road unlawful and in violation of the Juvenile Justice (Care
and Protection of Children) Act, 2000 and the Constitution of India.
b to direct the Respondent to produce the first Petitioner before the
Juvenile Justice Board forthwith;
c to order and direct that the first Petitioner be shift from the Mumbai
Central Prison at Arthur Road to the Observation Home at Umerkhadi;
d to expedite the inquiry of the first Petitioner before the Juvenile Justice
Board so as to complete it within 2 months of the First Petitioner's first
production.
e to grant compensation of Rs. 1,00,000 (Rupees One lakh only) to the
first Petitioner for his illegal detention in the police lock up and jail for
l0 months from the date of arrest on 21-5-2003 to 7-3-2003;
f to grant compensation of Rs. 30,000/- (Rupees thirty thousand only)
for the First Petitioners illegal detention in Mumbai Central Prison
after his having been declared a Juvenile by the Sessions Court in
Sessions Case on 7.3.2003 (756 of 02);
g And to order and direct that it is mandatory for arresting by police
personnel:-
i. to ask the arrestee his age at the time of arrest.
ii. to forward and file the cases of those arrestees claiming to be
under 18 years of age before the Juvenile Justice Board.
iii. to include in the Arrest Panchanama that the arrestee was asked
his age at the time of arrest and has stated his age as being "X"
number of years;

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 iv. to order and direct that the non-compliance by police personnel
of the procedure laid down under prayer.
h Above treated as misconduct and a departmental inquiry be initiated
against such police personal;
i. to direct the Registrar, Appellate (Criminal) Side, High Court
Bombay, to issue a notification directing the Magistrates to ask
each accused his age at first production stage and record the
same in the records.
ii. to conduct an inquiry with regard to determination of age of an
accused when he claims to be under 21 years of age.
iii. to give the accused an opportunity to produce documentary
evidence with regards to age, and only in absence of such
evidence medical examination to be ordered.
iv. to forthwith transfer an accused found to be under 18 years of
age to the observation Home and his case to the Juvenile
Justice Board along with the findings of the inquiry;
I. For such further and other orders and reliefs as the nature and
circumstances of the case may require.

On June 11, 2003, when the matter was placed before the High Court, the
High Court directed the respondents to take immediate steps to shift petitioner
to Observation Home at Umerkhadi. The High Court also directed the
authorities to produce the petitioner before the Juvenile Justice Board on 16 th
June, 2003. On July 2, 2003, the High Court noted that the directions issued by
it on June 11, 2003 were complied with. The petitioner was shifted to
Observation Home. He was also produced before the Juvenile Justice Board.
Regarding other prayers of payment of compensation as also issuing general
directions, the State prayed for time contending that the order passed by the
Sessions Judge was not in accordance with law. The High Court granted time
as prayed by the State. In the meanwhile, the State authorities challenged the

189
order of the Additional Sessions Judge, Greater Mumbai, which was
dismissed.
Regarding compensation to petitioner it was observed that “the order was
passed by the Additional Sessions Judge on 7th March, 2003 which was
received by the Thane Jail Authorities on the same day. This order could not
be implemented and the petitioner could not be shifted to the Observation
Home nor could he produce before the Juvenile Justice Board because of non
availability of police escort. Hence, without there being any fault on the part
of the accused, he was kept in prison, firstly at Thane and then in Mumbai.
Thus, there was a gap of more than three months in carrying out the order
passed by the Additional Sessions Judge. The order dated 7th March, 2003 was
implemented and effected only on 13th June, 2003. Therefore, respondents
were ordered to pay to petitioner an amount of compensation of Rs. 15,000.”
In case of R.D. Upadhyay v. State of A.P. and Ors.86 The National Institute of
Criminology and Forensic Sciences conducted a research study of children of
women prisoners in Indian jails. The salient features of the study brought to
the notice of all Governments in February 2002, were:
i. that most of these children were living in difficult conditions and
suffering from diverse deprivations relating to food, healthcare,
accommodation, education, recreation, etc.;
ii. no appropriate programmes were found to be in place in any jail, for
their proper bio-psycho-social development. Their looking after was
mostly left to their mothers. No trained staff was found in any jail to
take care of these children;
iii. in many jails, women inmates with children were not given any
special or extra meals;
iv. no separate or specialised medical facilities for children were available
in jail;

86
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 v. no prison office was deployed on the exclusive duty of looking after
these children or their mothers. They had to perform this duty
alongside many other duties including administrative work, discipline
maintenance, security-related jobs etc. None of them was reported to
have undergone any special training in looking after the children in
jails. Appeals were filed in the Supreme Court to draw the attention
of the Court to the plight of little children on account of the arrest of
their mothers for certain criminal offences.

The Court made following important observations:

i Child without their own wrong has to reside in jail with their mothers.
In some cases, it may be because of the tender age of the child, while
in other cases, it may be because there is no one at home to look after
them or to take care of them in absence of the mother. The jail
environment is certainly not congenial for development of the children.
ii Special provisions are made for the proper care, welfare and
development of the children, in Part III and IV of the Constitution of
India, besides other provisions in these parts which are also significant.
The best interest of the child has been regarded as a primary
consideration in our Constitution.
iii Article- 15, 21-A, 14, 23, 39(e), 39(f), 42, 45, 46, 47 are children
friendly laws. Article 42 provides that the State shall make provision
for securing just and humane conditions of work and maternity relief.
Article 45 stipulates that the State shall endeavour to provide early
childhood care and education for all children until they complete the
age of six years. Article 46 provides that the State shall promote with
special care the educational and economic interests of the weaker
sections of the people, and, in particular, of the Scheduled Castes and
the Scheduled Tribes, and shall protect them from social injustice and
all forms of exploitation. Article 47 provides that the State shall regard

191
 the raising of the level of nutrition and the standard of living of its
people and the improvement of public health as among its primary
duties and, in particular, the State shall endeavour to bring about
prohibition of the consumption except for medicinal purposes of
intoxicating drinks and of drugs which are injurious to health.
iv Apart from the aforesaid constitutional provisions, there are wide range
of existing laws on the issues concerning children, such as, the
Guardians and Wards Act -1890, Child Marriage Restraint Act, 1929,
the Factories Act, 1948, Hindu Adoptions and Maintenance Act 1956,
Probation of Offenders Act 1958, Orphanages and Other Charitable
Homes (Supervision and Control) Act 1960, the Child Labour
(Prohibition and Regulation) Act 1986, Juvenile Justice (Care and
Protection of Children) Act 2000, the Infant Milk Substitutes, Infant
Foods and Feeding Bottels, (Regulation of Production, Supply and
Distribution) Act, 1992, Pre-natal Diagnostic Techniques (Regulation
and Prevention of Misuse) Act, 1994, Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act, 1995,
immoral Traffic (Prevention) Act, 1986.
v The Juvenile Justice (C&P) Act, 2015 replaced The Juvenile Justice
(C&P) Act, 2000 to comply with the provisions of the Convention on
the rights of the child. In addition to above, the national policy for
children was adopted on 22nd August, 1974. This policy, inter alia,
lays down that State shall provide adequate services for children both
before and after birth, and during the growing stages for their full
physical, mental and social development.

The Apex Court issued the following guidelines:

1. A child shall not be treated as an under-trial while in jail with his/her
mother. Such a child is entitled for education, medical facilities,
recreation facilities, food, shelter and clothing as a matter of his right.

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2. Pregnancy:
i. Before sending a woman who is pregnant to a jail, the
concerned authorities must ensure that jail in question has the
basic minimum facilities for child delivery as well as for
providing pre-natal and post-natal care for both, the mother
and the child.
ii. When a woman prisoner is found or suspected to be pregnant
at the time of her admission or at any time thereafter, the lady
Medical Officer shall report the fact to the superintendent. As
soon as possible, arrangement shall be made to get such
prisoner medically examined at the female wing of the District
Government Hospital for ascertaining the state of her health,
pregnancy, duration of pregnancy, probable date of delivery
and so on. After ascertaining the necessary particulars, a report
shall be sent to the Inspector General of Prisons, stating the
date of admission, terms of sentence, date of release, duration
of pregnancy, possible date of delivery and so on.
iii. Gynaecological examination of female prisoners shall be
performed in the District Government Hospital. Proper pre-
natal and post-natal care shall be provided to the prisoner as
per medical advice.

3. Child birth in prison:

i. In case of an expectant prisoner either arrangements should be
made for her parole or sentence should be suspended in case
of minor offences so that her delivery can be made outside the
prison. This facility can be denied only in high security risk
cases.

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 ii. If a child is born in prison then they shall be registered in the
birth registration office but it should not be recorded in their
birth certificate that the child is born in prison.

4. Female prisoners and their children:

i. Female prisoners having children less than the age of six years
shall be allowed to keep their children with them till they have
attain age of six years.
ii. Such children shall be given to a protective custodian until
their mother is released or the child attains such age that
he/she can earn their own livelihood.
iii. If a female prisoner dies and leaves behind a child, the
Superintendent shall inform the concerned District Magistrate
so that he can arrange for the proper care of the child. If the
concerned relative(s) are not in a stage to support the child
then the District Magistrate can either hand over the child to a
responsible citizen who can guarantee proper care and
maintenance of the child or the child can be placed in an
institution run by the government.

5. Food, clothing, medical care and shelter:

i. The State/U.T. Government shall ensure that children in jail
are provided with adequate clothing according to the
prevailing climatic conditions.
ii. Growing children shall be provided with proper diet schedule
keeping in view their caloric requirements.
iii. Proper arrangement should be made in all jails to take care of
the nutritional needs of children.
iv. There should be separate utensils for each mother prisoner for
using to feed her child and they should be of suitable material.

194
 v. Clean water should be provided to the child and it must be
periodically checked whether it is safe for drinking or not.
vi. Children shall be regularly examined to observe their proper
growth and development and shall also ensure that they
receive timely vaccination. Medical officer can also provide
extra clothing and diet as per needs.
vii. Alternative arrangements should be made for looking after
any children if her mother falls ill and is not able to take care
of her child.

6. Education and recreation for children of female prisoners:

i. The child of female prisoners shall be kept in crunch, while
their mothers are at work in jail and provide then proper
education and other recreational opportunities.
ii. There shall be a crèche and play school open for child of
women prisoners. The crèche and play school shall be open
outside the prison premises.
7. In many states, the jails are not providing proper facilities for small
children who are living with women prisoners. It is the duty of state to
ensure the proper care and protection to the children for their proper
biological, psychological and social growth.
8. It must be the priority of the state to keep the children away from the
environment such as crowded jail rooms, hard core criminals, violent
criminal etc, which is harmful for their growth.
9. Diet: Dietary scale prepared by Dr. A.M. Dwarkadas Motiwala, MD
(Paediatrics) for institutaionlized children has been submitted by Mr.
Sanjay Parikh which recommends exclusive breastfeeding on the
demand of the baby. And if for any reason, the mother is not able to
feed the baby then authorities must provide undiluted fresh milk to the
baby.

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 10. Programmes and Schemes which are necessary for the development
and welfare of children should be implementing with dog spirit. It is
necessary for the better future of these children.
11. The District Legal Services Authorities and any other competent
authority must inspect jails timely to monitor the necessary facilities
given to mother and child and also take necessary steps to implement
the directions regarding children and mother given by the state
government.
12. The Courts directed to give priority to such cases and decide their
cases expeditiously.
The Juvenile Justice (Care and Protection of Children) Act, 2000 and 2015 has
taken care of the issue of apprehension and detention of a juvenile by the
police. When any delinquent juvenile arrested or apprehended, must be placed
under the custody of special police unit or under the designated officers.
According to various judgments of the Apex Court which have emphasized
that “it is duty of the State to ensure for development of child that is why the
law dealing with the children provide that they shall not be kept in jail”. But
despite of these guidelines the juvenile still being detained by the police in the
police station on account of lack of concern, knowledge and lack of
sensitization in the police department towards the delinquent children.
However, the provisions made by Juvenile Justice (Care and Protection of
Children) Act, 2000 and 2015 providing for special police units etc. is a
welcome enactment.

Bail to Juvenile
Section 12 of Juvenile Justice (C&P) Act, 2015 provides for bail to all
person/juvenile/children who are apprehended and detained of the offence
being bailable or non-bailable. It reads as under :-
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

196
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 but he shall not be so released if there is appear reasonable
ground for believing that the release is likely to bring him into association
with any known criminal or exposed him to moral, physical or phychological
danger or that his release would defeat the end of justice”.
Section.12(2) “When such person having been apprehended is not
released on bail under Sub-section (1) by the officer in charge of the
police station, such officer shall cause the person to be kept only in an
observation home in the such manner as may be prescribed until the
person can be brought before a Board”.
Section.12(3) “When such person is not released on bail under Sub-
section (1) by the Board, it 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
order”.
Section.12(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 condition of
bail”.

It has been mentioned in the Act that “Bail and not the jail is a rule”, and the
Board and court should be liberal in granting the bail to the juvenile produced
before them. The judicial trend can be examined in the cases given below.
In Brijesh Kumar vs. The State,87 the court held that the entries in the school
leaving certificate were rejected on the ground that parents understated the age
of the children at the time of admission to school. The Juvenile Court on the

87
98(2002) DLT 63

197
basis of the material on record appreciated the evidence and declined to accept
the evidence of the father of the petitioner claiming to be juvenile.
The high court also accepted the reasoning given by the juvenile court
regarding entries in the school leaving certificate. However, even though
petitioner was held not to be a juvenile, the court can released him on bail,
after observing that he was a young boy and can be easily influenced and if he
remains in the company of hard-core criminals in Jail, his entire life may be
spoiled. The petitioner was ordered to be released on bail on his furnishing
personal bond in the sum of Rs.10,000/- with one surety in the like amount to
the satisfaction of the trial Court.
In Md. Gazi Khan's case,88 Bail application was moved by the petitioner on
behalf of his son, Md. Gazi Khan, who was arrested under section 20(b) and
60(3) NDPS Act for having with him 106 Kgs of Ganja contained in 6 gunny
bags. The accused, Gazi Khan was a juvenile aged about 14 years old and he
was pursuing his studies in a local school. It was submitted that the accused
was arrested under section 20(b) of NDPS Act and the offence so committed
under that section does not come under the purview of Section 37(b) of the
said Act, and as such the accused is entitled to be released on bail. On the
other hand state contended that under the NDSP Act there is no provision for
asking relief as juvenile.
The court ordered that “the accused Md. Gazi Khan shall be released on bail
of Rs.10,000/- with one surety of the like amount to the satisfaction of the
learned Special Judge (NDPS) Manipur. It was further directed that accused,
after his release on bail, shall be put under the custody of his father, the
petitioner who shall produce the accused Md.Gazi Khan before the concerned
Investigation Officer as and when required.”
In Abhey Kumar Singh vs. State of Jharkhand and Ors 89
in this writ
application, the petitioner prayed for quashing the entire criminal prosecution

88
Md.Alimuddin v. State of Manipur 2001-(107)-Cr.LJ-1140.
89
2004 CriLJ4533

198
pending in the Court of Addl. Chief Judicial Magistrate, Deoghar and also for
a direction of release of the petitioner forthwith from the Jail custody on the
ground that the petitioner is a juvenile and he is in custody since 6.11.2000
along with other criminals and the total period of detention i.e. 30 days in
remand home including three years eight months which is still continuing, in
total three years nine months. The petitioner submitted that in spite of
direction of the Court he was detained in custody under the Juvenile Justice
Act. The enquiry also could not be concluded but the substance of accusation
was explained on 16.9.2003. The petitioner submitted that he had remained in
custody for more than three years, hence he cannot be sentenced. The entire
criminal proceeding has become infructuous.
Considering the above fact and circumstances of the case, the petitioner was
released forthwith from custody without any bond or surety on the reasoning
that the inquiry proceeding under Juvenile Justice Act has to be concluded
within a period of three months from the date of receipt of a copy of this order,
failing which the Criminal Proceeding shall stood automatically quashed. It is
well settled that the Juvenile cannot be sentenced and the total period of
sentence is three years. In the present case the petitioner has already served the
detention period for more than three years eight months and is still in custody
without any special provisions in the custody under the Act.
In two decisions of the Supreme Court, namely, Rajinder Chandra vs. State of
Chhattisgarh and Anr.90 and Pratap Singh vs. State of Jharkhand and Anr. 91 the
Court declared JJ (C&PC) Act, 2000 to be a beneficial legislation for the
benefit of the juvenile and the Act must be construed as such. In this line,
when Section 12 makes it mandatory for a juvenile, even if he is „apparently a
juvenile‟ to be released on bail, then this Court and all the courts dealing with
such a situation must give full meaning to the provisions of the said Section as
also the object of the Act. Bail has to be granted to a juvenile, notwithstanding

90
MANU/SC/0051/2002
91
JT 2005 (2) 271

199
anything contained in the Code of Criminal Procedure, 1973 or any other law
for the time being in force which includes the NDPS Act also except for the
conditions mentioned in Section 12 itself which, if one examines the same, are
also to prevent any damage to the juvenile. The idea behind Section 12 being
that the juvenile must be released on bail unless releasing him on bail would
be detrimental to him or would entirely defeat the ends of justice.
In Rakesh Kumar @ Sittu vs. State of Jharkhand 92 revision application was
filed against the order of the 4th Additional District and Session Judge,
Palamau at Daltonganj in Criminal Appeal, affirming the order passed by
Additional Chief Judicial Magistrate, Palamau at Dalonganj, whereby and
where under they refused to enlarge the petitioner on bail, who was accused in
connection with a case registered under Section 307 of the Indian Penal code
on the plea that if the petitioner is released on bail he may form his own
association of criminal or will become associate of other criminal gangs”. The
revision petitioner submitted that the person assigned by the appellate court
could not be a valid ground for refusing the prayer for bail. Revision Petition
Allowed.
In Devesh vs. The State (NCT of Delhi) 93, a criminal revision before Delhi
High Court decided on 12.5.2006, it was held that “it is apparent from a
reading of Section 12 that there must be a reasonable ground for believing that
the juvenile's release would bring him into association with 'known' criminals.
The Additional Sessions Judge has merely conjectured that the release of the
petitioner might bring him in contact with criminals not 'known criminals', on
the basis of an assumption that some of his companions have not been arrested
and those companions are criminals. This is not the right approach to take
while construing Section 12 of the JJ (C & PC) Act, 2000. When the
expression used is 'any known criminal' then the Court should give full
meaning to that expression. Even as per the case of the prosecution, neither

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did the juvenile commit the murder nor did he catch hold of the deceased nor
he was responsible for the injuries. The only injuries recorded in the
postmortem are knife injuries. Even otherwise the petitioner would be entitled
to bail although more so as he is a juvenile.
Accordingly, the order rejecting bail was set aside and the petitioner was
directed to be released on the petitioner's father furnishing an affidavit to the
fact that he shall take proper care of his son and that he shall not permit his
son to fall into any kind of bad company. This in addition to the condition that
petitioner shall be released on bail on his furnishing a personal bond in the
sum of Rs.10,000/- with one surety of the like amount to the satisfaction of the
Juvenile Justice Board.
In Ranjit Singh vs. State of H.P. 94
the petitioner was arrested on 11th
September, 2004 for an offence punishable under Section 376 read with
Section 511 of the Indian Penal Code and Section 3 of the Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The petitioner
applied for bail before the Juvenile Justice Board at Shimla. However, the
Principal Magistrate declined the bail on the grounds that release of the
accused juvenile on bail would defeat the ends of justice and also put him in
physical and psychological danger and that there would be a lot of resentment
amongst the people in the area which will have adverse psychological impact.
Therefore this appeal was filed.
The appeal was allowed. The Court below was directed “to release the
petitioner forthwith on furnishing bonds in the amount of Rs.5,000/- with one
surety of the like amount to the satisfaction of the Principal Magistrate,
Juvenile Justice Board, Shimla, subject to the condition that neither the
petitioner nor his parents would influence the witness or otherwise interest
with them”.
Section 12 of the Act stipulates that “a juvenile is entitled to release on bail
provided the release does not expose him to moral, physical or psychological

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2005 Cri L J 972

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danger or his release may hot defeat the ends of justice. In reply, filed by the
prosecution, or in the police file, there is nothing to show that juvenile, if
released on bail, would be exposed to criminal or neither moral or physical or
psychological danger nor it can be said that his release will defeat the ends of
justice. The Principal Magistrate, Juvenile Justice Board, therefore erred in
staying that release of juvenile would put him to moral, physical and
psychological danger without there being any material on record”.
In Manmohan Singh vs. State of Punjab 95 this petition was filed by juvenile
Manmohan Singh, who was confined in Observation Home, for setting aside
the order passed by the Chief Judicial Magistrate/ Juvenile court, Ludhiana.
The Courts below declined the Bail to the petitioner on the ground that firstly,
there is apprehension that the release of the petitioner on Bail would expose
him to moral and physical danger as no elderly person is available to look after
him. Secondly, the petitioner at the time of occurrence was armed with Kirpan
and had caused injuries to the deceased as a result of which he died. In these
circumstances, the release of the petitioner on bail would likely to harm the
trial as may pass coercion upon the prosecution witnesses. The petitioner
submitted that both the aforesaid reasons recorded by the Additional Sessions
Judge are unsustainable and on the basis of the same, the prayer of the
petitioner for release him on Bail cannot be rejected as it is Mandatory for the
Juvenile Court to release the juvenile on bail notwithstanding anything
contained in the Code of Criminal Procedure, 1973 or in any other law for the
time being in force. Petitioner further submitted that apprehension of the
Courts below to the effect that if the petitioner is released on Bail, he would
expose himself to moral and physical danger having no elderly person to look
after him, is wholly without any basis as the grandfather and maternal uncle of
the petitioner are always available at home to look after him. The respondent-
State opposed the prayer made by the petitioner by submitting that the
petitioner was rightly declined the Bail keeping in view the nature of crime he

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(2004) 136 PLR 497

202
has committed and the fact that in case of his release, there is apprehension of
his being exposed to moral and physical danger having no elderly person to
look after him.
The Criminal Revision was allowed and the impugned orders passed by the
Chief Judicial Magistrate/ Juvenile Court, Ludhiana and Additional Sessions
Judge, Ludhiana respectively, were set aside and the petitioner was ordered to
be released on Bail subject to the satisfaction of CJM Ludhiana. The Court
held that the orders passed by the Courts below are not sustainable in the eyes
of law. It was observed that from the bare reading of the Section 12, its clear
that it is mandatory for the Juvenile Court to release a juvenile on Bail with or
without surety if such a juvenile is arrested or detained or appears or is
brought before a Juvenile Board in a Bailable or non-Bailable offence,
notwithstanding anything contained in the Code of Criminal Procedure. The
only exception is that if there are reasonable grounds for believing that the
release of the juvenile is likely to bring him into association with any known
criminal or expose him to moral, physical or psychological danger or that his
release would defeat the ends of justice, then he shall not be released on Bail.
The reasonable grounds for believing that his release is likely to bring into
association with any known criminal or expose him to moral, physical or
psychological danger or that his release would defeat the ends of justice,
should be based upon some material/evidence available on the record. It is not
a matter of subjective satisfaction but while declining Bail to the juvenile on
the said ground, there must be objective assessment of the reasonable grounds
that the release of the juvenile is likely to bring him in association with any
known criminal or expose him to moral, physical or psychological danger or
that his release would defeat the ends of justice. In my opinion, under the
aforesaid Section, l the benefit of Bail cannot be denied to the juvenile on the
ground that he has committed murder by a sharp edged weapon by inflicting
injuries on the person of the deceased. There is only one exception as,
indicated above, but under the said exception also the release of the juvenile

203
on Bail can be denied if there is sufficient material on record which clearly
indicate that the release of the juvenile is likely to bring him into association
with bad company or that his release would defeat the ends of justice.
In the instant case, admittedly the petitioner is a juvenile. It is also undisputed
that the grandfather of the petitioner is available at home. In case the petitioner
is released on Bail, he can be looked after by his grandfather and the
observation of the Courts below that the release of the petitioner would lead to
moral and physical danger having no elderly person to look after him, is a
mere apprehension based on no material/evidence. Merely because the
petitioner is alleged to have caused injuries to the deceased by sharp edged
weapon, he cannot be denied the benefit of Bail under Section 12 of the Act,
as the provisions of this Section provide that every juvenile for whatever
offence he is charged with shall be released on bail except under the aforesaid
one circumstance, which in my opinion, is not existing in the instant case.
Rather by declining the Bail to the petitioner the very purpose of the Act will
be defeated. Thus, the impugned orders passed by both the Courts below are
not sustainable in the eyes of law as they will defeat the very purpose of the
Act.
In Vijendra Kumar Mali Etc. vs. State of U.P. 96
accused persons were
declared as juveniles by the court of C.J.M. and later on same fact was
confirmed by the Sessions Judge, Sonebhadra. However, both the court of
C.J.M. and the Sessions Judge, Sonebhadra rejected the Bail Applications of
the accused persons. Against this refusal, revision was filed before the
Allahabad High Court. High Court allowed the revision setting aside the order
of the Sessions Judge and that of the C.J.M., so far as it related to refusal of
Bail. It was also directed that if the Revisionists move application for bail, the
court shall dispose it of keeping in view the provisions contained in section 12
of the Juvenile Justice (Care and Protection of Children) Act, 2000. This order

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was placed before the Sessions Judge, Sonebhadra but he again refused Bail to
the Revisionists by his order dated 10.2.2003. Being aggrieved by the said
order, the present Revisions were filed. Revision was allowed. Orders of
Sessions Judge refusing Bail were set aside and it was directed that the
Revisionists should be admitted to Bail on their guardians filing a personal
bond and two sureties in the like amount to the satisfaction of the C.J.M.
Sonebhadra. The Registrar General was directed to place the record of this
case along with the judgment before the Administrative Judge of Sonebhadra
for issuing necessary instructions to the concerned Sessions Judge or to make
such remarks in his Character Roll as deemed fit.
The court observed that the Sessions Judge, “Sonebhadra has probably lost
sight of the provisions of the Act and ignored the directions issued by this
Court passed in the aforesaid Revisions. He has mentioned the ground of
refusal of Bail to be gravity of the offence, which is none of the grounds
mentioned in section 12 of the Act. It appears from this order that the Sessions
Judge, Sonebhadra was bent upon to refuse the Bail without caring for the law
on this point. Section 12 of the Act provides that the juvenile offender shall be
released on Bail but the exception would be that he shall not be released if
there appears reasonable grounds for believing that the release is likely to
bring him into association with any known criminal or expose him to moral,
physical or psychological danger or that his release would defeat the ends of
justice”.
This Court in a number of judgments has categorically held that Bail to the
juvenile can only be refused if anyone of the grounds existed. So far as ground
of gravity is concerned, it is not covered under the above provisions of the
Act. If the Bail application of the juvenile was to be considered under the
provisions of the Code of Criminal Procedure, there would have been
absolutely no necessity for the enactment of the aforesaid Act. The language
of Section 12 of the Act itself lays down that notwithstanding anything

205
contained in the Code of Criminal Procedure, 1973 or in any other law for the
time being in force, the juvenile accused shall be released.
The order passed by the Sessions Judge nowhere shows that anyone of the
grounds for refusing Bail existed. Under these circumstances the refusal of the
Bail was not only unjustified but illegal and against the purpose of the Act.
In Vikky alias Vikram Singh vs. State of U.P. and Ors. 97 juvenile Vicky alias
Vikram Singh was declared to be juvenile but refused the Bail on the ground
that the offence is of heinous nature and is exclusively triable by the Court of
Session. An appeal against the said order was preferred but the Sessions Judge
Kanpur, who dismissed the appeal. The Revision was filed against the
judgment and order of Sessions Judge, Kanpur Nagar, in Allahabad High
Court. The Court held that “Bail was dismissed without applying mind or
caring for the law. Section 12 of the Juvenile Justice (Care and Protection of
Children) Act 2000, is very clear on this point. According to Sub-section (1)
of Section 12 any person, being juvenile, shall be released on Bail with or
without surety. However, for refusal of the Bail there are only three grounds-
firstly if the release is likely to bring him into the association with any known
criminal. Secondly, exposes him to moral, physical or psychological danger
and thirdly if his release would defeat the ends of justice. This Court has been
repeatedly directing that if the release is refused on these grounds the Court
should record findings as to whether any such ground exists or not. It is not
that the mere quoting of few lines from this Act, the Bail should be refused.
The impugned order does not show any such ground either in the order of the
Chief Metropolitan Magistrate or in the order of the Magistrate. The
Magistrate in his order has refused the Bail firstly on the ground that it is
exclusively triable by the Court of Session and the offence being of heinous
nature, which is no ground for refusing Bail under/ Section 12 of the Act.
Appellate Court also summarily dismissed the appeal without properly
appreciating the law on this point and even without discussing the law. The

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2003 Cri LJ 3457

206
Revision was therefore allowed with direction that the Revisionist Vicky alias
Vikram Singh shall be released on Bail on his guardian's furnishing a personal
bond and two sureties each in the like amount to the satisfaction of Chief
Metropolitan Magistrate Kanpur Nagar”.
In Mata (alias Manohar Singh) vs. State of Rajasthan 98petitioner delinquent
juvenile under Juvenile Justice Act moved an application for Bail under
Section 18 of the Juvenile Justice Act. Same was rejected by Juvenile Court
and in appeal by the Court of Session. Petitioner, therefore, approached
Rajasthan High Court. Before Rajasthan High Court, question was whether the
Bail was rightly declined to the petitioner?
The High Court noted that neither Juvenile Board nor Sessions Judge cared to
look into the provisions of section 18 of JJ (C&P) Act 2000, before declining
Bail to the petitioner. Setting aside orders of these courts, the Rajasthan High
Court released the petitioner on Bail making following observations :
(i) As per Section 18, delinquent juvenile ordinarily has to be
released on Bail irrespective of the nature of the offence alleged
to have been committed unless it is shown that here appears
reasonable ground for believing that his release is likely to bring
him under the influence of any criminal or expose him to moral
danger or that his release would defeat the ends of justice.
(ii) Other provisions of the Juvenile Justice Act clearly show that
extraordinary procedure has been prescribed for Bails, inquiry
and punishment regarding delinquent juveniles. The trial of a
delinquent juvenile under the Code of Criminal Procedure is
prohibited. The delinquent juvenile has to be dealt with under
the provisions of the Act which are curative and reformative
rather than punitive. Section 22 of the Act expressly provides
that no delinquent juvenile shall be sentenced to death or
imprisonment or committed to prison in default of payment of

98
1996 Cri.L.J. 743.

207
 fine or in default of furnishing security. Thus, the delinquent
children have been given a special status as a class to be dealt
with as per the provisions of the Act which are intended to
reform them and to save them from becoming hardened
criminals.
(iii)Section 18 of the Juvenile Justice Act clearly lays down that
Bail to a delinquent child is a rule and mandate of the Act
irrespective of the nature and seriousness of the offence
committed by him. The section also provides the grounds and
circumstances when Bail can be declined to a juvenile
delinquent. Those grounds are that release is likely to bring him
into association with any known criminal or expose him to
moral danger or that his release would defeat the ends of justice.
Further, there should be material on record to show that any of
the above circumstances exists to decline Bail.
(iv)The Juvenile Justice Act is a beneficial and social oriented
legislation which should be given full effect by all concerned
whenever a matter relating to a delinquent child comes before
them.
In Master Niku Chaubey vs. State, 99 it was observed by the Court that “the
nature of the offence is not the conditions on which Bail can be granted or
refused to the juvenile. It was held that Bail in respect of the juvenile has to be
considered purely under the provision of Section 12 of the said JJ Act, which
requires Bail to be granted mandatorily unless the court feels that the release
of the juvenile is likely to bring him into association of any known criminal or
expose him to moral and physical danger or that release would defeat the ends
of justice.”

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2006(2) JCC 720

208
 In Prakash vs. State of Rajasthan 100 the petitioner was facing trial for the
offence under Section 376, IPC. He moved an application under Section 12 of
the Act seeking bail, which came to be dismissed on the ground that he is an
accused of rape and is having the rural background. Against the order of the
JJB, the petitioner filed an appeal which came to be dismissed by the
Appellate Court on the ground of gravity of the offence of rape. Against this
order appeal was filed in the High Court. The question was arise - when can a
juvenile be denied bail under section 12 of the Juvenile Justice Act, 2000?
The order of the JJB, Jodhpur as well as the order of the Appellate Court was
set aside and court directed juvenile to be released on bail, provided his
guardian furnishes a personal bond in the sum of Rs.10,000/- with a surety in
the like amount to the satisfaction of the Principal Magistrate, JJ Board,
Jodhpur with the stipulation that on all the subsequent dates of hearing, he
shall produce the delinquent juvenile before the said Board or any other Court
during pendency of the case and his guardian shall keep proper look-after of
the juvenile delinquent and keep him away from the company of known
criminals.
In Arvind vs. State,101 the Court had observed that “the gravity of the offence
is not a criteria or impediment for the release of the juvenile on Bail”.
In case of Gopal Sharma vs. State of Rajasthan,102 as per case facts in the
intervening night of 02.12.2002 and 03.12.2002 murder of a foreign lady
tourist namely Lee Ching took place in a hotel in the city of Udaipur. The
petitioner who was a guide by profession was also staying with the deceased.
On 2.12.2002 they were seen retiring to room No. 301 alter taking dinner.
However, in the morning of 3.12.2002 till 10:00 A.M. when the room was not
opened and there was no response from inside, it was opened by a duplicate
key. The dead body of the foreign tourist was found lying in the room. The
petitioner was found missing. The F.I.R. was lodged at Police Station,

100
RLW 2006(1) Raj 538
101
1999 (2) I CC Delhi 311
102
RLW 2004 (1) Raj 450

209
Ghantaghar. After usual investigation Police laid charge-sheet against the
petitioner for offence under Section 302 I.P.C. As per the school certificate,
the petitioner-applicant was born on 29.061985, as such on the date of the
incident he was 17 years and 6 months old. Thus, he was held to be a juvenile
within the meaning of Sub-clause (k) of Section 2 of the Juvenile Justice (Care
and Protection of Children) Act, 2000. The Sessions Judge sent the accused
for trial before the Principal Magistrate, Children Court, Udaipur. The
applicant tiled application before the Juvenile Court for release on bail. The
Magistrate held that the release of the accused would defeat the ends of justice
and as such rejected the bail application.
The petitioner preferred an appeal against the said order to the court of
Sessions Judge under Section 52 of the Act. The Sessions Judge rejected the
application. Hence this revision was filed to the High Court. In the High Court
Petitioner contended that the gravity of offence cannot be a ground to reject
the bail application. The High Court held that “the finding of fact recorded by
both the courts below does not call for interference by this court in exercise of
the revisional powers”. Consequently, the revision petition was dismissed. The
Court observed that “in the instant case the bail application has been refused
not only because the applicant is facing trial on a serious charge of murder but
also the special circumstance that his act is prejudicial to image of the country
in the world, adversely affecting the tourism business. The tourists move in the
country on the guidance and faith of guide. A betrayal to foreign tourist is
betrayal to the country, projecting a bad image in the eye of the world. Thus,
the view taken by both the courts below cannot be said to be erroneous in
considering that the case of the petitioner falls in the exceptional category
provided under Section l2 of the Act”.
In Kamil vs. State of Uttar Pradesh, 103 it was observed that: “A juvenile in
conflict with law may be released on bail with or without surety but such
release shall not be possible if there appear to be reasonable grounds for

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1994 Cri. LJ 1491

210
believing that such release is likely to bring him into association with any
known criminal or expose him to moral, physical or psychological, danger or
his release would defeat the ends of justice. Welfare of the juvenile or child is
the need of the day and the provisions contemplate a judicial officer with more
sensitive approach oriented outlook.”

In Vishal Dubey (Minor) vs. State of U.P.,104 a report was also called from the
District Probation Officer regarding revisior1ist‟s antecedents etc. in which he
stated that juvenile Vishal Dubey was residing with his father Ram Prakash
Dubey at Agra who was employed as Reader in the Consolidation department,
Mathura. He was a student of B.Sc. in R.B.S. College and upon inquiries the
neighbours told that Vishal Dubey was not of criminal nature nor he remained
in the company of boys of criminal nature. They also told that he had been
earlier detained in a criminal case but he had been hailed out and the police
had again detained him in this criminal case. It was also stated that the father
of Vishal Dubey assured the Probation Officer that if Vishal Dubey is released
on bail, he would be sent to some other place out of Agra for completing his
studies. The District Probation Officer concluded in his report that taking into
consideration the above facts, if he is released on bail, it shall not have any
adverse effect on the interest of justice. The revisionist was a juvenile on the
date of the incident and there was no dispute on this point. The bail to a
juvenile can be refused only on three grounds as mentioned in Section l2 of
Juvenile Justice (Care and Protection of Children) Act 2000. The report of the
District Probation Officer on all those points is in favour of the revisionist. It
was further been stated by the Probation Officer that upon inquiries the
neighbours of the revisionist told him that the revisionist was not of criminal
nature nor he remained in the company of criminals though he had been
arrested by the police in connection with some cases.

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MANU UP 0509 2006

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The revisionist, who was juvenile on the date of the incident, was bailed out
and the orders of courts rejecting his bail applications declared set aside.
105
In Ravi-Ul-Islam State (NCT) The High Court Of Delhi, the revision
petition directed against the order of the Additional Sessions Judge whereby
the petitioner„s appeal against the order dated 27.10.2005 passed by the
Juvenile Justice Board, Delhi was dismissed. A charge-sheet under Section 20
of the Narcotic Drugs and Psychotropic Substances Act, 1985 was filed
against the petitioner for being found in possession of 1.820 kgs of Charas.
The petitioner moved an application for transfer of the proceedings to the
Juvenile Justice Board inasmuch as the petitioner claimed to be a Juvenile.
That application was dismissed by the Additional Sessions Judge, New Delhi
by an order dated 05.02.2005. The petitioner, being aggrieved by the said
order, filed a Criminal Revision Petition in the High Court. High Court
allowed the order and the entire matter was remanded to be dealt with in
accordance with law. Thereafter, the petitioner moved an application for bail
before the Juvenile Justice Board which was dismissed by the said Board.
Being aggrieved by this order, the petitioner preferred an appeal before the
Sessions Court. The same was dismissed. The petitioner therefore again
approached the High Court and pointed out that the grant of bail under Section
12 of the said Act is mandatory unless the conditions requiring the court not to
grant bail specified in the Section itself are satisfied. He pointed out that in the
impugned order, apart from a simple statement that the release of the
petitioner would defeat the ends of justice; there is nothing to substantiate or
to back this finding. The petitioner submitted that Social Investigation Report
does not disclose any fact which could lead one to the conclusion that
releasing the petitioner, who is a Juvenile, would result in the defeat of ends of
justice.
The high court noted that the Social Investigation Report is in favour of the
Juvenile being released. The Report reveals that the family consists of the

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212
father, mother and elder brother of the Juvenile and they are all earning
members and they altogether earn about Rs. 10,500/- per month. It is also
pointed out that prior to the petitioners arrest, he was doing embroidery work
and that the family is socially recognized in the locality. Although the police
record of the family member shows that the father and elder brother of the
Juvenile had another case registered against them wider Sections 308/328/34
IPC, they have been acquitted. The report also reveals that the parents of the
Juvenile are „very much concerned‟ about his welfare and that all the other
family members, including the elder brother would take full responsibility of
the Juvenile in future. It is noted that the juvenile's habits are that he plays
cricket, watches television some times and no bad habit was indicated. The
report clearly states that no criminal traits have been reported in his
personality during the course of interview. Even the neighbours, who have
been interviewed, have given a satisfactory report about the behaviour and
conduct of the Juvenile. Under the heading „Analysis of the case giving an
idea‟, it has been indicated that the Juvenile denies the charges of the present
case and states that he has been falsely implicated in the case. It is also
indicated that the Juvenile has promised to lead a law abiding citizen's life and
the parents have also promised to take proper care of the Juvenile in future and
also to take suitable steps to counsel and guide him. It was held that “looking
at the Social Investigation Report, it is difficult to come to the conclusion that
the release of the Juvenile would bring him into association of any known
criminal or expose him to any physical or moral danger or his release would
defeat the ends of justice. Accordingly, in view of the specific provisions of
Section 12 of the said Act, the petitioner would be clearly entitled to be
released on bail.”
a) a reasonable ground for believing that the release is likely to bring the
juvenile into association with any known criminal;
b) his release is likely to expose him to any moral, physical or
psychological danger; and

213
 c) his release would defeat the ends of justice.
The Additional Sessions Judge refused to grant bail to the petitioner invoking
the third exception, i.e., that if the juvenile is released, it would defeat the ends
of justice. The reasons for arriving at this conclusion are entirely different
from the factors which require to be considered. The question of the ends of
justice being defeated has to be considered in the context of the welfare of the
juvenile, whereas what the Additional Sessions Judge has done is that,
according to him, the ends of justice would be defeated because the trial is yet
to commence; the cases against co-accused are pending in other courts; release
of the juvenile would affect the trial in the main case. None of these are factors
which have to be taken into account when a decision is required as to whether
the release of the juvenile would defeat the ends of justice or not. Apart from
this, nothing else has been pointed out which would indicate that the release of
the petitioner would result in a defeat of the ends of justice.
In Sandeep Kumar vs. State106, the petition sought bail for a juvenile who was
in observation home since 29.10.2003. The juvenile was arrested by Police
Station Alipur on 29.10.2003 for an alleged offence under Section 376/201/34
of the IPC. The FIR in this case was lodged by the mother of the victim. The
unfortunate victim was only six years old at the time of commission of
offence. On 29.10.2003 at 6.30 p.m. the victim came to her mother with tears
in her eyes and with blood on her clothes which were wet and told her that
Sandeep (petitioner) took her to his house and committed ganda kaam with
her. The child also reported that the mother of the petitioner first took off her
clothes washed them and sent her back in those wet clothes. The Juvenile
Justice Board declined bail to him. So did the court of sessions when
approached in the revisional jurisdiction. The Juvenile Justice Board in its
order dated 3.6.2004 observed that instances of sexual offences on minor girls
were on the rise and that in this case although the accused was a juvenile the
victim was also of a very tender age. The Board took into consideration the

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214
report of the probation officer but ignored the advice of the probation officer
on the point as to whether the petitioner deserves institutionalisation. The
Additional Sessions Judge in its order found that if the juvenile was admitted
to bail, the society will be in moral and physical danger as the victim was very
tender in age.
The High Court agreed with the conclusions drawn by the Additional
Sessions Judge as well as the Juvenile Justice Board.
The Court held that “It is clear from the above point that the social
investigation report is self contradictory. The social and economic condition of
the family cannot be said to be satisfactory, if the family sends the child,
below sixteen years of age, to work as daily wager. It cannot be said that the
mother has any control over the juvenile as the juvenile has committed an act
depicting a criminal tendency. It cannot be said to be an act done in a sudden
spurt of anger. The juvenile took the child to his house and committed rape
showing clear criminal tendencies in him. The mother certainly is not
concerned with the welfare of the child who instead of insisting that the child
goes to school sends him out to work. In this situation if the juvenile offender
is released from the observation home and sent back to the same socio-
economic atmosphere, he will be exposed to moral and psychological dangers.
Further the risk of juvenile committing such a offence in future is also a
likelihood because victims of sexual offences of such tender age are often not
even able to bring the offence to the notice of the elders. Hence the Court held
that it would not be in the interest of justice to release juvenile on bail. The
prayer for bail, therefore, was declined”.
The Court further observed that “the record of the Juvenile Justice Board that
the prosecution has cited fifteen witnesses but in the last one year, since the
commencement of the trial only six have been examined. The Juvenile Justice
Board was therefore directed to examine the remaining witnesses within a
period of two months and make every endeavor to dispose of the matter within
one month of completion of prosecution evidence”.

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In KishanKumar@Jailer vs. The State (NCT of Delhi), 107 the bail for juvenile
(petitioner) was sought in this appeal before the High Court. It was submitted
that by virtue of Section 12 of the Juvenile Justice (Care and Protection of
Children) Act, 2000, the petitioner would be entitled to be released on bail and
the exceptions provided in Section l2 to the effect that there exists reasonable
grounds for believing that the release is likely to bring him into association
with any known criminal or expose him to moral, physical or psychological
danger or that his release would defeat the ends of justice, are also not
attracted. Reliance was placed on the Social Investigation Report submitted to
the Juvenile Justice Board, Kingsway Camp, Delhi by the Chief Probation
Officer, Sewa Kuteer Camp, Kingsway Camp. The recommendation regarding
treatment of the Juvenile in that Report reads as under:
Juvenile is 16 years old and he is first offender. His family members are much
worried about the possible punishment. Neighbourerd gave the satisfactory
report about the conduct and behaviors of the Juvenile. His father and uncle
gave assurance that e will take care and vigil over of the Juvenile in future. In
view of all personal traits of the Juvenile, the satisfactory report of the
neighborhood the strong ties of the family members with each other and his
resent occupation agriculture at his active place village Basgaon, Distr.
Gorakhpur (UP). Institutionalization at this stage does not yield fruitful results.
He may be given chance.
State opposed the grant of bail by saying that the Juvenile is better of not
being released as indicated by the order of the Juvenile Justice Board dated
17.01.2005 The State further submitted that the bail application was also
rejected by the Additional Sessions Judge on 01.02.2005 on the ground that
the case was pending before the Juvenile Justice Board and one material
witness still remains to be examined. However, the counsel for the State
submitted that when the Juvenile Justice Board considered the grant of bail-to
the present petitioner, the only material before it was the said Social

107
MANU/DE/0248/2005

216
Investigation report. Decision: The Court directed that “the petitioner should
be released on bail on furnishing a personal bond in the sum of Rs.5000/- with
one surety of the like amount to the satisfaction of the Juvenile Justice Board”.
Upon going through the report, it does not appear that there was any
indication that if the Juvenile is released on bail, the release is likely to bring
him into association with any known criminal or expose him to moral,
physical or psychological danger or that his release would defeat the ends of
justice. In this view of the matter, the exceptions carved out in Section 12 of
the said Act are not attracted and that being the case, in terms of the said
Section, the petitioner has to be released on bail.
Bail and not jail is a rule which is provided under Juvenile Justice (Care and
Protection of Children) Act, 2000. However, on the basis of particular facts of
a case the provisions have been applied differently resulting into different
judicial opinions. The juvenile, however, has been held to be always entitled
to bail except where the denial of bail to him would be in juveniles own
interest. The Courts have expressed the view that “for denying bail there has to
be a reasonable ground that the juvenile's release would bring him into
association with known criminals or expose him to moral psychological
danger or his release would defeat the ends of justice. This reasonable ground
for believing should be material and substantive one and not flimsily or
hypothetical one. As observed above, a juvenile cannot be refused bail on the
ground of seriousness and gravity of offence.”

Final Disposition of the Juvenile

108
In Kakoo vs. State of H.P., Kakoo, aged 13 years, was convicted for
committing rape on a child of two years and was sentenced to four years'
rigorous imprisonment. His conviction was upheld by the High Court of
Himachal Pradesh. Reference was made to the Supreme Court contending that
if the main object of punishment is to reform the prisoner and to reclaim him

108
(1976) 2 SCC 21

217
to society; his prolonged detention in the company of hardened criminals
would be subversive of that object. Further it was stressed that the best way of
reforming child delinquent is to put him back under the supervision of his
father subject to the execution of a bond by the latter for his son's good
behaviour for a certain period. In the alternative, it was urged, that the
sentence be reduced to the imprisonment already undergone, with the
imposition, if at all, of a little fine. Reference has also been made to Sections
82 and 83 of the Penal Code to bring out the point that in the matter of crime
and punishment, a child offender is not to be treated in the same manner as a
mature adult. The State, however, stoutly opposed any reduction in the
sentence. Stress has been laid on the grisly manner in which the crime was
committed.
It was held that “the ends of justice will be served by reducing the sentence of
the appellant to one year's rigorous imprisonment and a fine of Rs.2000 and in
default of payment of fine, to suffer six months' further rigorous
imprisonment. The appellant shall be detained separately from adult prisoners.
He should preferably be detained in a reformatory school, if any, for the said
period. The fine, if realised, shall be paid as compensation to Shrimati
Parmeshwari Devi, the mother of the victim baby”.
It was observed that “while the sordid features of the case, including the
sadistic manner in which the crime was committed by their instinctive reaction
tend to steel the heart of law for a sterner sentence, we cannot overlook the
stark fact that at the time of commission of offence, the appellant was hardly
13 years of age. An inordinately long prison term is sure to turn him into an
obdurate criminal. In the case of child offenders, current penological trends
command a more humanitarian approach. Under the Penal Code, an infant
under seven is conclusively presumed to be incapable of committing crime. At
this age he is not endowed with any discretion to distinguish right from wrong.
Even a child between seven and twelve who may not have attained sufficient
maturity of understanding to entertain a criminal intent i.e. Doliincapax is

218
presumed to be incapable of committing an offence. In several States of India
enactments have been passed to treat juvenile offenders or child delinquents
differently in the matter of crime and punishment. We are told that there is no
such enactment in force in Himachal Pradesh. It was found that there was a
need for reformatory approach in awarding punishment to juvenile delinquent
aged 13 found to have committed rape on child of 2 years. Sentence was
reduced to one year's rigorous imprisonment and a fine of Rs.2000 was
imposed.
In Santo and others vs. State of U.P. 109 three boys aged between 10-14 years
raped 11 year old girl and were convicted for an offence under section 376 of
the Indian Penal Code. Allahabad High Court affirmed sentence of 2 years
imprisonment to be served by detention in an approved school. On appeal, the
Supreme Court held that “the courts below have failed to apply their mind to
considerations which are relevant when a youthful offender is sentenced. The
U.P. Children Act, 1951 contains two provisions; section 29 and section 30.
Section 29 provides that when child is found to have committed an offence
punishable with transportation or imprisonment, the court, if satisfied on
inquiry that it is expedient so to deal with the child, may order him to be sent
to an approved school for a stated period. But under section 30 the court may
order that the youthful offender to be, instead of committing him to approved
school, either discharged after due admonition or released on probation of
good conduct and commit him to the care of his parents, etc. Since in this case
child has acted on impulse and there is nothing to show the presence of any
vicious streak of character, it would be more appropriate to leave him to the
care and attention of character, it would be more appropriate to leave him to
the care and attention of parental authority rather than to send him to an
approved school”.
It observed, “That our juvenile justice system still thinks in terms of terror,
not cure, of wounding, not healing, and a sort of blind man's buff is the result.

109
(1979) 2 SCC 628

219
This negative approach converts even the culture of juvenile homes into junior
jails. From the reformatory angle, the detainees are left to drift, there being no
constructive programme for the detainees nor correctional orientation and
training for the institutional staff…. The state's response to punitive issues
relating to juveniles has been stricken with 'illiteracy' and must awaken to a
new enlightenment, at least prompted by the International Year of the Child….
The mainstream of criminal justice system has not been refined by restorative
legislation…. The finer focus of sentencing is not furious reaction to the
offence but habilitative rescue of the youthful offender from moral-material
abandonment and careful reformation by kindling his creative potential.
Judicial responsibility is not mechanic but humanistic, and the ritualistic
magistrate is a misfit. ”
In Bhoop Ram vs. State of U.P.110 the issue for consideration was whether the
appellant who had been convicted and sentenced along with certain adults
accused should have been treated as a child within the meaning of Section 2
(4) of the U.P. Children Act, 1951 and sent to the approved school for
detention therein till he attained the age of 18 years instead of being sentenced
to undergo imprisonment in jail.
The Court after considering the material on the record opined that “the
appellant therein could not have completed 16 years of age on the date when
the offence was committed and held that the appellant should have been dealt
with under the U.P. Children Act instead of being sentenced to imprisonment
when he was convicted by the Sessions Judge under various grounds. Since
the appellant, more than 28 years, the court directed for quashing of remaining
sentence imposed on him and his release forthwith”.
“ where an accused had been wrongly sentenced to imprisonment instead of
being treated as a child under Section 2 (4) of the U.P. Children Act and sent
to an approved school and the accused had crossed the maximum age of
detention in an approved school viz., 18 years, the course to be followed is to

110
1989 (3) SCC 1

220
sustain the conviction but however quash the sentence imposed on the accused
and direct his release forthwith. ”
In another case111 , the Supreme Court held that “Since the appellants are now
aged more than 30 years, there is no question of sending them to an approved
school under the U.P. Children Act for detention. Accordingly, while
sustaining the conviction of the appellants under all the charges framed against
them, we quash the sentences awarded to them and direct their release
forthwith. ”

In UttamGhosh vs. State of West Bengal and anr 112 as per fact, the accused
assaulted victim as a result of which victim's left thumb was imputed. The
case was committed to the Court of Session where the defence produced one
ossification test report pointing out that the accused was aged about 17 years
at the time of the alleged offence, and after a contested hearing, the Additional
Sessions Judge came to the finding that the accused was a minor and that he
was fit to proceed with the trial as there was no Juvenile Court in the District.
The judge found the accused guilty under Section 307, IPC and sentenced him
to suffer R.I. for 7 years and to pay a fine of Rs.500/-, in default, to suffer
further R.I. for three months. This appeal is directed against said judgment and
order. The appellant practically did not challenge the conviction, but he
directed his attack on the non-observance of the settled principle of law by the
trial court in the case of a juvenile delinquent within the meaning of the West
Bengal Children Act, 1959 and argued that the provision of Section 26 of the
Act was not followed by the court below and the order of sentence was passed
without taking into consideration the facts and circumstances of this case. It is
also pointed out that though the Judge concluded that the accused was of
tender age and the incident took place on the spur of moment, no attempt was
made to take into consideration the provisions of section 26 of the Act.

111
Pradeep Kumar v. State of U.P.(1995) Supp. (4) SCC 419
112
2004-(110)-Cr. L.J. 0440-CAL

221
Accordingly, the appellant contended that in a case of this nature, sentence is
liable to be set aside. The State, however, contended that the evidence on
records is sufficient to indicate that the trial Court came to a just decision in
convicting the present appellant under Section 307 IPC. It is also contended
that in view of the provisions of Section 465, Cr. P. C., there is no reason to
interfere with the sentence passed in this case.
After a due consideration of the evidence on record and circumstances
explained, the Judge rightly found the accused guilty and convicted him there
under. But as regards imposition of sentence, he completely ignored his own
order dated 16.04.1985 in which he concluded that the present appellant was a
minor and proceeded as if, the accused person was an adult and not a juvenile
delinquent within the meaning of West Bengal Children Act, 1959. The trial
Court only at the initial stage followed the procedure and examined the
accused under Section 251, Cr.PC. but thereafter forgot to apply the other
provisions of the Code. This is sufficient to show that a failure of justice has in
fact been occasioned thereby, and accordingly, the Court is competent to
proceed with the question of legality of the sentence and Section 465 of the
Cr.P.C. is not a bar.
In Section 27 of the West Bengal Children Act, 1959, there are provision as to
what order can be lawfully passed in respect of the juvenile delinquent. The
trial Court did not consider this aspect of the matter. The imposition of
sentence to R.I. for 7 years and thereafter to pay a fine of Rs.500/- and, in
default, to suffer further R.I. for three months are sufficient to indicate that the
Court below did not apply its mind to the West Bengal Children Act, 1959. In
fact, he was not competent to pass an order of sentence in the manner done in
this case and accordingly, passing of the sentence in this case has no sanction
of law and accordingly it is liable to be set aside.
In the facts and circumstances of this case, the conviction of the present
appellant is upheld, but sentence is liable to be set aside or quashed. In the
present case, the accused was aged 17 years at the time of alleged offence in

222
1983 and at present, he is aged about 36 years and as such no purpose would
be served in passing any order under Section 26 of the West Bengal Children
Act, 1959. Accordingly, the conviction of the appellant under Section 307 IPC
is sustained, but the sentence awarded to him is quashed and the accused is
discharged from the Bail bond. It is made clear that in terms of Section 49 of
the West Bengal Children Act, 1959, the conviction of the said accused shall
not be regarded as disqualification attached to conviction for an offence.
In Jitendra @ Banti113, the juvenile (accused) was convicted for the murder
and he was sentenced to suffer life imprisonment. The High Court on appeal
“maintained the conviction but set aside sentence because of the fact that the
accused was a juvenile and in view of Section 20 of the JJ Act, the appellant
could not have been ordered to undergo imprisonment.
In case of Sheela Barse vs. Secy., Children's Aid Society, 114 the appellant
challenged the judgment of the Bombay High Court delivered on a writ
petition filed by her. In the writ petition before the Bombay High Court she
made grievance about the working of the New Observation Home located at
Mankhurd maintained and managed by the Children‟s Aid Society, Bombay.
The grievances made by the petitioner were of four:
i. Delay in repatriation or restoration of children to their parents in
respect of whom orders for repatriation were made by the Juvenile
Court;
ii. Non-application of mind in the matter of taking children into custody
and directing production before the Juvenile Court;
iii. Absence of proper follow-up action after admission of the children in
the Observation Homes, in particular, grievance was made that the
Child Welfare Officers were not performing their duties and such
failure led to continued detention of children without any justification;
and

113
RLW 2004 (2) Raj 1297
114
(1987) 3 SCC 50

223
 iv. Detention in such circumstances was illegal and the condition very
often resulted in harassment to the children so detained.
The court did not agree with the supervision over the Observation Homes even
though without this aspect being assured the condition of Homes could not
improved. However, the court held that “dedicated workers have to be found
out, proper training has been given to them and such dedicated workers should
be introduced into the children homes”.
The Court also held:
i. That the Child Welfare Officer (Probation) as also the Superintendent
of the Observation Home must be duly motivated. They must have a
working knowledge in psychology and have a keen sense of
observation and on observation and on their good functioning would
depend the efficacy of the scheme.
ii. The Juvenile Court has to be manned by a Judicial Officer with some
special training. Creation of a court with usual Judicial Officer and
labelling it as Juvenile Court does not serve the requirement of the
statute. If that were so, the statute would have no necessity of
providing a Juvenile Court. The statutory scheme contemplates a
judicial officer of a different type with a more sensitive approach-
oriented outlook. Without these any Judicial Officer would, indeed, not
be competent to handle the special problem of children.
iii. The Court agreed with the appellant that the respondent Society should
be treated as a State within the meaning of Article 12. The respondent
Society was therefore told to regulate its activities not only in
accordance with the statutory requirements but also act in a manner
satisfying the requirements of the constitutional provisions in Articles
21 and 24 as also the Directive Principles of State Policy.
iv. The Court also directed the State of Maharashtra to take prompt action
to strictly enforce the law, act upto the requirements of the

224
 constitutional obligations and proceed to implement the directions
given by the High Court as also by it in this judgment.
Currently, juvenile and their issues have been getting concentration from both
the Government and the society but we must say that the problems are of such
massive magnitude that all that has been done till now is not sufficient. It is
the obligation of every society to bring up children who will be citizens of
tomorrow in a correct way. Today‟s children will be the leaders of tomorrow
who will make the country‟s standard high and uphold the prestige of the
Nation in the whole world. If a child goes erroneous for want of proper
knowledge, education, attention, training and guidance, it will indeed be a
deficiency of the society and of the Government.
In Suresh Dutt vs. State of Rajasthan, 115 the court rejected all the contentions
forwarded by the petitioner but accepted that since the appellant is presently
aged more than 36 years, there is no question of sending him now to an
approved School under the Juvenile Justice Act for detention. Accordingly
while sustaining the conviction of the appellant under all the charges proved
against him, the order of sending him to Approved Reformatory School is
quashed.

In Ram Suresh Singh vs. Prabhat Singh alias Chhotu Singh &Anr. 116 The court
observed that:
“we are not oblivious of the fact that it is difficult to lay down a law as
to whether in a case of this nature, the lower or the upper age or the
average age should be taken into consideration. Each case depends on
its own facts. In this case, however, the documents produced by
respondent no.1 were not found to be forged, fabricated or otherwise
inadmissible in law. If a document is proved to be genuine and satisfies

115
2003-( 109)-CRLJ -3342 -RAJ
116
2010 (1) RCR (Criminal) 245

225
 the requirement of law, it should be, subject to just exceptions, relied
upon”.
In Mohan Mali &Anr. vs. State of M.P. 117 The Supreme Court observed:
“In the facts of this case, we are faced with a situation where the
juvenile, DhanaLal, had already been tried along with adults
and had been convicted under Sections 302/34, 326/34 IPC and
was sentenced to life imprisonment, out of which he has already
undergone about 9 years of the sentence. Rule 98 of the 2007
Rules, in our view, squarely applies to Appellant No.2
DhannaLal's case. His case is to be considered not only for grant
of bail, but also for release in terms of the said Rule since he has
completed more than the maximum period of sentence as
provided under Section 15 of the 2000 Act”.
The legal position has been clearly explained in Hari Ram's case (supra) and
does not, therefore, require any further elucidation in this case. Having regard
to the fact that the appellant no.2, DhannaLal, was a minor on the date of
commission of the offence, and has already undergone more than the
maximum sentence provided under Section 15 of the 2000 Act, by applying
the provisions of Rule 98 of the 2007 Rules read with Sections 15 and 64 of
the 2000 Act, we allow the appeal as far as he is concerned and direct that he
be released forthwith. The bail application filed on his behalf is also disposed
of, accordingly. The appeal so far as other accused Mohan Mali, is concerned,
was ordered to be listed for hearing separately.
The Indian Parliament showing its solidarity with International Community
and in compliance with its commitment to International Obligations has
enacted “Juvenile Justice (Care and Protection of Children) Act, 2000” in
conformity with the international standards and rules providing for up-liftment
of the children in need of care and protection and for their growth and
development. And again in 2012 after Delhi gang rape case, in 2015 the Indian

117
2010 (2) RCR (Criminal) 839

226
Parliament act according to the need of society and add some new and
necessary provisions to the JJ (C&P) 2000 Act and passed a new Act called
Juvenile Justice (Care and Protection) Act 2015. The objective of the 2015 Act
passed by Parliament is a collective reform and restoration even if it takes the
route of stiff punishment for certain adult crimes even if it takes the route of
stiff punishment for certain adult crimes committed by juveniles below 18
years. Now role of Supreme Court of India and various High Courts has been
very appreciable in interpreting the provisions of the new enactment in such a
way that advances the cause of the juvenile justice. The judicial trends set by
the Supreme and High Courts are guiding factors for the lower judiciary. The
beneficial provisions have been applied and benefit has been given to a
number of juveniles whose cases had even attained finality and they were
undergoing sentences. It has also been the efforts of the courts at the time of
final disposition of the case that an opportunity for reforming himself is
provided to the juvenile in conflict with law by way of proper training and
providing necessary care and protection for absorbing the juvenile in the main
stream of life.

Juvenile Justice Amendment Act, 2015

The Juvenile Justice (Care and Protection of Children) Act, 2015 has come
into force and repeals the Juvenile Justice (Care and Protection of Children)
Act, 2000. “The Juvenile Justice (Care and Protection of Children) Bill, 2015”
was passed by Lok Sabha on 7 th May, 2015; was passed by Rajya Sabha on
22nd December, 2015 and received Presidential assent on 31st December,
2015118.

The JJ Act, 2015 provides for strengthened provisions for both children in
need of care and protection and children in conflict with law. Some of the key
provisions include: “inclusion of several new definitions such as orphaned,

118
www.pib.nic.in

227
abandoned and surrendered children; and petty, serious and heinous offences
committed by children; clarity in powers, function and responsibilities of
Juvenile Justice Board (JJB) and Child Welfare Committee (CWC); clear
timelines for inquiry by Juvenile Justice Board (JJB); special provisions for
heinous offences committed by children above the age of sixteen year;
separate new chapter on Adoption to streamline adoption of orphan,
abandoned and surrendered children; inclusion of new offences committed
against children; and mandatory registration of Child Care Institutions”.
Under Section 15, special provisions have been made to tackle child offenders
committing heinous offences in the age group of 16-18 years. The Juvenile
Justice Board is given the option to transfer cases of heinous offences by such
children to a Children‟s Court (Court of Session) after conducting preliminary
assessment. The provisions provide for placing children in a „place of safety‟
both during and after the trial till they attain the age of 21 years after which an
evaluation of the child shall be conducted by the Children‟s Court. After the
evaluation, the child is either released on probation and if the child is not
reformed then the child will be sent to a jail for remaining term. The law will
act as a deterrent for child offenders committing heinous offences such as rape
and murder and will protect the rights of victim.
To streamline adoption procedures for orphan, abandoned and surrendered
children, the existing Central Adoption Resource Authority (CARA) is given
the status of a statutory body to enable it to perform its function more
effectively. Separate chapter (VIII) on Adoption provides for detailed
provisions relating to adoption and punishments for not complying with the
laid down procedure. Processes have been streamlined with timelines for both
in-country and inter-country adoption including declaring a child legally free
for adoption.

Several rehabilitation and social reintegration measures have been provided

for children in conflict with law and those in need of care and protection.

228
Under the institutional care, children are provided with various services
including education, health, nutrition, de-addiction, treatment of diseases,
vocational training, skill development, life skill education, counselling, etc to
help them assume a constructive role in the society. The variety of non-
institutional options include: sponsorship and foster care including group
foster care for placing children in a family environment which is other than
child‟s biological family, which is to be selected, qualified, approved and
supervised for providing care to children.

Several new offences committed against children, which are so far not
adequately covered under any other law, are included in the Act. These
include: “sale and procurement of children for any purpose including illegal
adoption, corporal punishment in child care institutions, use of child by
militant groups, offences against disabled children and, kidnapping and
abduction of children”.

All child care institutions, whether run by State Government or by voluntary

or non-governmental organisations, which are meant, either wholly or partially
for housing children, regardless of whether they receive grants from the
Government, are to be mandatorily registered under the Act within six months
from the date of commencement of the Act. After that penalty is provided in
the law in case of non-compliance of Act guidelines.
Under the new Juvenile Justice (Care and Protection) Act 2015, first time
police registered the case under section 279, 337 and 304 (for culpable
homicide not amount to murder which entails a maximum of 10 years jail),
when a teenager, who allegedly ran over a 32 year old marketing executive
while driving his father's Mercedes in Delhi in April and Juvenile Justice
Board said the investigation officer had rightly booked the accused for
culpable homicide as it seems that the juvenile was driving not merely rash
and negligent but also knew well that it could lead a serious accident. Juvenile

229
Justice Board also ordered that the boy would face trial as an adult while
observing that the offence alleged committed by him was “heinous”, which
under the act referred to as offence committed by a child who has completed,
or is above 16 year of age and the case transferred to the Session Court.
It is the first of its kind case since the amendment in the Juvenile Justice (Care
and Protection of Children) Act 2015, which allowed the Board to transfer
cases of heinous offences by children to the session court.

Following Amendments made in 2015 Bill

The Juvenile Justice(C&P) 2015 allows the juvenile between the ages of 16 to
18 years to be tried in adult court if they found to commit any heinous crimes.
And these are some notable amendments which made in Juvenile Justice (Care
and Protection) Act 2015 by the Parliament of India, are:
i. Any child that found committing any crime will now be send for a
preliminary assessment for a period of three months, up from the
earlier one month.
ii. A clarification is added that the preliminary assessment is not a trial,
but to assess the child‟s capacity to commit the crime.
iii. A new clause on fair trial is added, under which the assessment will
look into the special needs of the child, under the tenet of fair trial
under a child-friendly atmosphere.
iv. The child will not suffer from any disqualification that arises from any
conviction under the Act.
v. The records of any conviction will be destroyed after the expiry period
of appeal, except in the case of heinous crimes.
vi. Biological parents giving up children for adoption, will be given three
months to rethink their decision, instead of the existing one month.
vii. The aftercare of the child in institutional care will not be restricted to
only one time.

230
viii. Any child leaving institutional care can now receive financial support
more than one time.
ix. Disabled children will be given precedence in inter-state adoption.
x. Abandoned children, found by the childcare facilities, will be kept for
60 days before being given up for adoption or foster care, instead of
the existing 30 days.
xi. Any child who has been abandoned by biological parents due to
unavoidable circumstances will not be considered to be wilfully giving
up the child.
xii. In acting on an appeal against an order passed against the child, the
board will now take help of experienced psychologists and medical
specialists.
xiii. There will now be proper training of special juvenile units in the police
force.
xiv. NCPCR and SCPCR will be the nodal authorities to be responsible for
monitoring implementation, the publicity of the amended act, and to
look into cases that arise out of the Act.

Criticism and Loopholes in The JJ (C&P) Act 2015

i. It will have adverse effect impact in the protection and rehabilitation of
juvenile in conflict with law.
ii. The juvenile in the age group of 16 to 18 will be traumatic situation if
they are brought before the criminal court for having committed
serious crimes.
iii. It will leads to retributive justice, not juvenile justice.
iv. Since JJB is presided over by Chief Judicial Magistrate of the district,
one could assume that the chance of transfer of adolescents to adult
court would apparently be more.
v. Harsh punishment cannot be deterrent and this in turn could make the
juveniles hard core criminals.

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vi. Is it the government acceptance as to its failure to ensure
rights to the children in this country?
vii. Amendment of Juvenile Justice Act is retrogressive and
would undermine the basic objectives of the act.

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PROPOSED CHAPTERIZATION
Chapter -1 Introduction
i) Introduction
ii) History of juvenile criminality and law
iii) Signification of study
iv) Objectives of study
v) Hypothesis
vi) Research Methodology
vii) Limitation of study.
vii) Chapterisation.

Chapter-2 Historical Development Of Juvenile Justice Laws.

Chapter-3 International Perspective On Juvenile Justice And Conventions.

Chapter-4 Juvenile laws in India.

Chapter-5 Judicial Trends on Juvenile Delinquency and important judgments.

Chapter-6 Juvenile Criminality And Law In Telangana State.

Chapter-7 Conclusions and Suggestions

I) Testing of hypothesis
II) Findings, Suggestions.

BIBILOGRAPHY

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