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JUVENILE JUSTICE ACT

JUVENILE JUSTICE ACT. By GEETANJLI GOEL DELHI HIGHER JUDICIAL SERVICE. Statistics. Number of crimes committed by juveniles has increased – 27,936 IPC crimes by juveniles in 2012 and 31,725 cases in 2013.

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JUVENILE JUSTICE ACT

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  1. JUVENILE JUSTICE ACT By GEETANJLI GOEL DELHI HIGHER JUDICIAL SERVICE

  2. Statistics Number of crimes committed by juveniles has increased – 27,936 IPC crimes by juveniles in 2012 and 31,725 cases in 2013. Significantly, share of IPC crimes committed by juveniles to total IPC crimes reported in the country has remained more or less the same- 1.2% in 2012 and 1.2% in 2013 and 2014. In 2014 102 cases, in 2015 181 cases and in 2016 198 cases were committed by juveniles constituting less than 1% of total crimes committed in the State.

  3. Need to treat children differently • Children need to be treated distinctly from the adults because: -children are weak and vulnerable and need special care -of their tender age and physique, mental immaturity and incapacity to look after themselves -they have to take the responsibility to rule the country in the near future and they should develop into responsible citizens.

  4. Constitutional Provisions and International Conventions • Articles 15(3), 21, 21A, 22, 23, 24, 39, 39A, 45, 47 and 51A (k) of the Constitution impose on the State the primary responsibility of ensuring that all needs of the children are met. • India is a signatory to the Convention on the Rights of the Child. • United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 (Beijing Rules or Declaration).

  5. Cont.. • United Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990) • United Nations Guidelines for the Prevention of Juvenile Delinquency (Riyadh Guidelines) • SAARC Convention on Regional Arrangements for Promotion of Child Welfare adopted in 2002.

  6. BACKGROUND • Act of 1986 • Act of 2000, amended in 2006 • Act of 2015 • Juvenile Justice (Care and Protection of Children) Rules, 2007 – called the ‘Model Rules’’ • Juvenile Justice (Care and Protection of Children) Rules, 2016 – also called the ‘Model Rules’.

  7. The first Act was 'Jammu and Kashmir Juvenile Justice Act 1997' for care, protection, treatment, development and rehabilitation of neglected or delinquent juveniles and for the adjudication of certain matters relating to and disposition of delinquent juveniles. Jammu & Kashmir is the only state in the country to have a separate Juvenile Justice System. • 'Jammu and Kashmir Juvenile Justice Act 1997' was amended and 'Jammu and Kashmir Juvenile Justice (Care and Protection of Children) Act, 2013' was enacted which came into effect from 25th April, 2013 with the objective to provide proper care, protection and treatment by catering to their development needs and for the adjudication and disposition of matters in the best interest of children and for their ultimate rehabilitation.

  8. How children come before courts • As victims of crimes • Witnesses • Children in conflict with law • Children in need of care and protection

  9. Comparitive Table

  10. Principles to be borne in mind • Best interest of the child • Rehabilitation and restoration or reintegration of the child in the society • Child is treated in a manner consistent with the promotion of his sense of dignity and worth • Presumption of innocence Apply to all.

  11. Role qua children as offenders • All the stakeholders must recognise the long term damage which can be done to a child because of an encounter with the criminal law early in his or her life. Prosecution must be regarded as a severe measure with significant implications for the future development of the child concerned. • In fact one of the fundamental principles contained in S.3 of the JJ Act is the principle of diversion i.e. measures for dealing with children in conflict with law without resorting to judicial proceedings shall be promoted unless it is in the best interest of the child or the society as a whole.

  12. Adjudicating Machinery • Juvenile Justice Boards- section 4 for juveniles in conflict with law • To be set up in each district • Consists of : Judicial Magistrate of First Class Two social worker members including one woman at least. Being monitored by Supreme Court in SampurnaBehurav. Union of India. Till constitution of JJBs, the CJM having jurisdiction in the area to perform functions of the Board

  13. Cases of children first before JJB • All cases relating to children in conflict with law to be first brought before the Board • Thus even as regards special offences, the provisions of JJ Act shall apply to all cases involving detention, prosecution, penalty or sentence of imprisonment of children in conflict with law under such other law. • Under Section 3 the inquiry has to be continued in JJB even where the child ceases to be a child during the course of such inquiry and orders passed under the Act.

  14. Functions of the Board • Adjudicate and dispose of cases of JCLs • Order registration of FIR for crimes committed under sections 24 to 29 or any other offence under any other law, committed by anyone in respect of the juvenile in conflict with law or children in need of care and protection on a complaint made in this regard or suo motu or on being intimated by CWC • Monitor institutions for JCLs and seek compliance from them in cases of any noticeable lapses • Liaise with CWCs, Boards • Send monthly or quarterly information • Take suitable action for dealing with unforeseen situations

  15. Homes Children not to be kept in jails (proviso to section 10(1) of the Act). Supreme Court in Sheela Barse v. Union of India (1986) 3 SCC 632 observed: “If a child is a 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 statutes dealing with children provide that a child shall not be kept in jail. Even apart from the statutory prescription, it is elementary that a jail is hardly a place where a juvenile should be kept. There can be no doubt that incarceration in jail would have the effect of dwarfing the development of the child, exposing him to baneful influences, coarsening his conscience and alienating him from the society.”

  16. Cont.. • Observation Homes – pending inquiry • Place of Safety – pending inquiry or after having been found involved • Special Homes – after having been found involved.

  17. Who is a child in conflict with law? • Who is alleged or found to have committed an offence, and • Who has not completed eighteen years of age as on the date of commission of such offence. • Section 82 IPC – less than 7 years old • Section 83 IPC – 7 to 12 years There may be situations in which the children in conflict with law may also be treated as children in need of care and protection.

  18. Who has to be informed by IO about apprehension of child? • On apprehension, the JCL is to be placed under charge of SJPU or the designated police officer (section 11). The officer in charge of the police station or the SJPU to which the juvenile is brought has to inform: • Parents/guardian along with address of Board and date and time when parents need to be present before the Board before which the juvenile will appear, they will also be informed about allegations and apprehension of juvenile [Section 14 (a), rule 14] • Probation Officer [Section 14 (b)] • Juvenile about his rights and procedures under the Act.

  19. Whether apprehension is mandatory in all cases • In case of non serious offences entailing a punishment of less than 7 years, the child may be apprehended only where same is necessary in the interest of the child.[rule 11 (2)]. • In serious offences entailing a punishment of seven years or more imprisonment for adults, the power of apprehension shall be exercised. [rule 11(1)]. • On apprehension a JCL shall be sent to an observation home after completion of formalities as soon as possible but not later than 24 hours from the time of apprehension.

  20. In all cases involving a JCL, the police shall submit to the Board a report containing social background of the juvenile and circumstances of the alleged offence along with copy of age memo, personal search memo as per Form II within 7 days of filing of FIR. [rule 12(1)]

  21. Where a JCL is apprehended by the police, the following documents have to be submitted within 24 hours at the time of first production of the JCL before the Board: • Apprehension memo as per Form III • A report of circumstances of apprehension as per Form IV • Medical examination report, request for MER in Form V • Juvenile’s version of the incident Rule 12(2)

  22. Where a JCL is not apprehended, the police or the Juvenile or Child Welfare Officer shall intimate the parents or guardian of the juvenile and hand over custody of the juvenile to such parent or guardian on a written undertaking in Form VI to produce the juvenile before the Board as and when required by the Board. • If parents or guardian fail to ensure production of the JCL before the Board despite the undertaking, Board shall pass orders under Section 23 of the Act.

  23. Police shall record the juvenile’s version of the incident in the presence of and verified by Juvenile Welfare Officer or Probation Officer or social worker member of the Board or parent or guardian of such juvenile. • If in the juvenile’s version of the incident, it comes to notice of the police that an adult has caused the juvenile to be in conflict situation, action against such adult shall be initiated keeping the best interest of the juvenile in mind and to ensure that he keeps away from such influence.

  24. Do’s and don’ts Child not to be handcuffed, chained or fettered or tied with ropes and no coercion or force to be used on the child [rule 73 and rule 14(5)] • Child not to be sent to lock-up or jail (section 11 and rule 14(4)), not to be kept with adult accused (SalimIkaramuddin v. Officer- in –charge 2005 Cri.L.J.799) • Transfer of child to SJPU not to be delayed • Child to be informed promptly and directly of all charges levelled against him through his parent or guardian • If FIR is registered, copy of same to be made available to the child or copy of police report to be given to the parent or guardian. cont…

  25. Cont… • Child to be provided appropriate assistance – safety, medical, food, assistance of interpreter or special educator or any other assistance which child may require and also to enable him to call any person of his choice over phone or otherwise [rule 14(3) and (8)]. • Child not to be compelled to confess his guilt Court of its own motion v. Govt. of NCT of Delhi order dt. 3.3.2009 • Child to be received, assessed and interviewed in a child friendly manner and home like environment by specially trained probation officers or designated and authorised social workers or police personnel [rule 14(6)]. Parent or guardian may be present during interview of the child by the police. • Juvenile Welfare Officer to speak to child in polite and soft manner and shall maintain dignity and self-esteem of the child.

  26. Contd… • Child not to be asked to sign any statement. • Child not to be subjected to any cruel or degrading treatment • Where victim and person in conflict with law are both children, they shall not be brought in contact with each other. • For purposes of questioning, interview, recovery of articles and weapons involved in the offence and taking the juvenile for spot investigation or any other procedure relating to investigation, concerned police officer shall seek written order from the Board.

  27. In all such cases, presence of SJPU social worker or a person trusted by the juvenile shall be mandatory and their signatures shall be obtained on all the documents prepared by the IO during the process. Rule 13

  28. Cont… • District Legal Services Authority to be informed to provide free legal aid to the child. • Child Welfare Police Officer to be in plain clothes and not his uniform except at time of apprehension [rule 72 and 14(7)]. For dealing with girl child, women police personnel shall be engaged. Police personnel to carry identification proof that shall be produced on demand. • Child not to be taken in a vehicle which presents look of a police vehicle. • DCPU to identify voluntary organisations to associate with police at time of apprehension for counselling of the juvenile and for preparation of SBR.

  29. Contd.. • Child to be produced before the Board within 24 hours of apprehension excluding time necessary for journey (Section 11 – if not sitting before the member (Court on its own motion v. Govt. of NCT of Delhi WP (C ) 8801/2008 order dated 3.3.2009 that the requirement of Section 10(1) is immediate production of the juvenile before the JJB and not mere production within 24 hours). • Police officer may send the person apprehended to an observation home or fit facility only for such period till he is produced before the Board i.e. within 24 hours of his being apprehended and obtaining appropriate orders from the Board.

  30. Contd… • Notwithstanding anything in the Code of Criminal Procedure Samvat, 1989 no preventive proceeding shall be instituted against a child in conflict with law such as proceedings under Chapter VIII. (Section 18). • The guidelines laid down in D.K. Basu v. State of West Bengal (1997)1SCC416 to be adhered to by the police in all cases of arrest or detention and the amended provisions of Cr.P.C. are equally applicable, mutatis mutandis, to a child (Jitender Singh) particularly S.41-B, 50A, 54 of Cr.P.C.

  31. Time period for completion of investigation • Objective is expeditious disposal of cases • In cases of offences entailing a punishment of less than 7 years imprisonment for adults, final report to be filed before the Board at the earliest and in any case not beyond the period of 60 days from date of offence, except in those cases where it was not reasonably known that the person involved in the offence was a child. [rule 13(3) – earlier within 3 months of date of offence or registration of FIR Sheela Barse v. Union of India, AIR 1986 SC 1773] • Even in cases of offences entailing punishment of imprisonment of 7 years or more for adults, final report should be filed at the earliest and in no case later than a period of 90 days from date of apprehension. • In Delhi the matter is kept pending even after bail is granted so that IO can be reminded constantly to file the PIR and to keep the child under assessment.

  32. Procedure in relation to Board • Procedures to be child friendly Rule 9 • Board not to resemble court. • Order of Board not to be invalid by the reason of absence of any member. • Two members shall constitute quorum for a sitting • Decision to be taken by majority if difference of opinion but if not there then opinion of PM prevails. • If juvenile is produced before a single member of the Board, order passed by such member shall be subject to ratification by the Board. Rule 9

  33. Cont.. • Board to ensure that no person unconnected with case remains present in room when case is in progress. • Board to ensure that only those persons in whose presence the child feels comfortable are allowed to remain present during the sitting. • While communicating with child, Board to use child friendly techniques through its conduct and adopt a child friendly attitude.

  34. Cont.. • In case child cannot be produced even before a single member of the Board due to apprehension of child during odd hours or distance, child to be kept by CWPO in Observation Home and thereafter be produced before Board but within 24 hours of apprehension. • Where child is not apprehended and information is forwarded to the Board, Board shall require the child to appear before it at the earliest so that measures for rehabilitation, where necessary can be initiated.

  35. PRODUCTION • When a child is first produced before the Board either after apprehension or on undertaking the Board shall review the information provided and: • The Board shall interact with the child. • Shall satisfy itself that the child has not been subjected to any ill treatment [rule 15(2)(a)] • Dispose of the case, if satisfied that the child has not committed any offence.[rule 15(1)(a)] • Transfer to the CWC cases of children appearing to be in need of care and protection.[rule 15(1)(a)]

  36. Cont.. • Consider the release of child in the supervision and custody of parent or guardian or fit person or fit institution with direction to present the juvenile for inquiry on next date[rule 15(1)(b)]. • Direct the child to be kept in an observation home or place of safety, fit institution or with a fit person pending inquiry, only in cases of involvement in a serious offence. • In all cases of release pending inquiry, the Board shall notify the next date of hearing, not later than 15 days of the first summary enquiry and also seek SBR and SIR. The Board should also seek report of mental and physical assessment and for possible drug abuse. (Rule 15)

  37. Cont.. • The proceedings shall be conducted in a simple manner and care shall be taken to ensure that the child is given child – friendly atmosphere. • The child shall be given opportunity to be heard and participate in inquiry. • The Board may require any parent or guardian having the actual charge of or control over the child to be present at any proceeding. • If satisfied that the presence of the child is not essential for the purpose of inquiry, the Board may dispense with his attendance and proceed with the inquiry

  38. Board shall explain to the child the contents of the allegations made out against him and record his detailed response verbatim and also ensure that the juvenile is not coerced or influenced to plead guilty • Cases of offences entailing punishment of less than 7 years imprisonment may be disposed through summary proceedings while for others due process of inquiry to follow • Procedure of trial in summons case to be followed.

  39. Cont.. Legal Aid: At the time of first production itself the Board shall ensure that child is represented by a lawyer of his choice and if no lawyer is representing a juvenile, Board shall assign a legal aid lawyer, adequate opportunity be given to juvenile to interact with lawyer before hearing. The child and his guardian should be informed about availability of legal aid. The Board shall ensure that the Legal cum Probation Officer in the District Child Protection Unit and the State or District Legal Aid Services Authority extends free legal services to the child. [Rule 16]

  40. Bail • S.13 provides for release on bail of a person accused of a bailable or non-bailable offence, and apparently a child when he is apprehended or detained or appears or is brought before a Board. • Bail can be with or without surety or he can be placed under the supervision of a PO or under the care of any fit institution or fit person. • Grounds on which bail can be refused are expressly stated i.e. if there appear reasonable grounds for believing that the release is -likely to bring him into association with any known criminal; or

  41. Cont.. -expose him to moral, physical or psychological danger; or -that his release would defeat the ends of justice. Thus even here primarily the interest of the child is seen and the children are to be kept in protective custody if the Board forms an opinion that the release will put him under moral, physical danger. Where child is not released on bail, he has to be kept in observation home or place of safety during the pendency.

  42. Cont… Boards are required to consider not the offence alleged against the child or the gravity thereof or the role of the child in the same or even the interest of the victim but whether it would be in the interest of the juvenile to keep him in protective custody. In 129 (2006) DLT 577 the High Court of Delhi did not entertain the plea of the State: “…that the alleged act said to have been committed by the juvenile along with co-accused was one of great moral degradation and the act in itself would demonstrate the perversity of the mind of the juvenile” Holding that the nature of the offence is not one of the grounds on which bail can be granted or refused to the juvenile.

  43. ESCAPED CHILD There may be several situations where a child may be said to have escaped: -He has been released on bail or undertaking but does not appear before the Board on date fixed for appearance and no application is moved for exemption or there is no sufficient ground to grant exemption -He has been kept in protective custody but escapes from there S.23 of the Act and rule 21 talk of a child in conflict with law ‘who has run away from a special home or an observation home or from place of safety from the care of a person under whom the child was placed under the Act’. In regular courts when an accused escapes or does not appear before the Court, NBWs are issued against the accused and thereafter if he avoids the service of the warrants resort is had to Section 82 Cr.P.C.

  44. Cont… Boards do not issue NBWs or resort to process under S.82 Cr.P.C. but issue notice to the parents/ guardians/ sureties to produce the children before the Boards. Directions are issued to the Juvenile Welfare Officer and the person-in-charge of the police station for production of the child [rule 15(4)] If JWO fails to produce the child even thereafter, Board instead of issuing process under Section 82 to pass orders under section 23 which provides that the child is to be produced before the Board within 24 hours which may pass appropriate orders [rule 15(5)]. No additional proceeding is to be instituted in respect of the child.

  45. Concerned person or officer in charge has to within 24 hours: • Send a report of the circumstances leading to such escape to the area PS or SJPU along with details and description of juvenile • Send the guards or concerned staff in search of juvenile at places like railway stations, bus stands • Inform parents or guardians about such escape • Submit detailed report to Board within 15 days of escape explaining reasons for escape and action taken

  46. Enquiry by the Board • The Board conducts an inquiry and not a trial (S.15 and R.10, 11, 12) • Cases of petty offences shall be disposed of through summary proceedings • The procedure of summons trial is to be followed and a charge is not framed even in heinous matters. • Only the material witnesses are examined as a full fledged trial is not required.

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