CONCEPT OF BAIL RELATED TO JUVENILE

SUBMITTED TO:

MS. SOMA BATTACHARJYA

SUBMITTED BY:

AMAN DWIVEDI

2018LLB008

IVth SEMESTER

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 TABLE OF CONTENTS

SYNOPSIS

1. Meaning 0f bail 04

2. Bail grant 0f t0 a child 12

3. Determinati0n 0f age 15

4. Pr0cedure 0f inquiry and trial 18

5. Special treatment 0f juvenile 20

6. Relevant case laws 22

7. C0nclusi0n 25

8. Suggesti0ns 27

9. Bibli0graphy

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 SYNOPSIS

OBJECTIVES OF THE STUDY

The 0bjectives 0f the study are as f0110ws: -

1. T0 find 0ut the r01e 0f the Crimina1 pr0cedure c0de 1973 in Juveni1e justice system.
2. T0 ana1yse the current Juveni1e justice system 0f Indian Crimina1 justice system re1ated t0
bai1.

RESEARCH METHODOLOGY
This study is 0f DOCTRINAL TYPE and b0th primary and sec0ndary s0urces are taken int0
c0nsiderati0n whi1e making it 1ike; websites, b00ks, and 0ther internet s0urces. The type 0f
study d0ne here is descriptive, ana1ytica1 & critica1 study. This research pr0cess dea1s with
c011ecting & ana1ysing inf0rmati0n within the b0undaries 0f the t0pic.

REASEARCH QUESTIONS
1. Whether there is requirement 0f impr0vement in Juveni1e justice system.

2. Whether the c0ncept 0f Juveni1e de1inquency is deve10ping in India?

LITERATURE REVIEW
Research Article:

Juvenile Justice System in India and Critical Analysis 0f the Juvenile Justice (Pr0tecti0n
and Care 0f Children) Act, 2000 with Juvenile Justice (Pr 0tecti0n and Care 0f Children)
Act, 2014 (Amendment), (2015), the paper pr0vides us with the Hist0rica1 Deve10pment 0f
Juveni1e justice and subsequentia11y it’s deve10pment in India fr0m first juveni1e justice act
1986 t0 juveni1e justice act 2015.

Nirbhaya case, H0use 0f legal Cases, (2013), the artic1e pr0vides us with the imperative
ref0rms made in Indian Juveni1e justice system after Nirbhaya rape case.

SCOPE OF THE STUDY

The study is restricted t0 ana1yses 0f c0rrecti0na1 system in c0mm0n 1aw c0untries with specia1
reference t0 India.

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Meaning 0f Bail
Bai1, in 1aw, means pr0curement 0f re1ease fr0m pris0n 0f a pers0n awaiting tria1 0r an appea1,
by the dep0sit 0f security t0 ensure his submissi0n at the required time t0 1ega1 auth0rity.

Acc0rding t0 B1ack's 1aw Dicti0nary, what is c0ntemp1ated by bai1 is t0 “pr0cure the re1ease 0f
a pers0n fr0m 1ega1 cust0dy, by undertaking that he/she sha11 appear at the time and p1ace
designated and submit him/herse1f t0 the jurisdicti0n and judgment 0f the c0urt.”

Bail under criminal Pr0cedure C0de:

Secti0n 436 0f the C0de pr0vides f0r re1ease 0n bai1 in cases 0f bai1ab1e 0ffenses. Secti0n 436
pr0vides that when pers0n n0t accused 0f a n0n-bai1ab1e 0ffense is arrested 0r detained he can
be detained as right t0 c1aim t0 be re1eased 0n bai1.

This secti0n entit1es a pers0n 0ther than the accused 0f a n0n-bai1ab1e 0ffense t0 be re1eased 0n
bai1, it may be reca11ed that S. 50(2) makes it 0b1igat0ry f0r a p01ice 0fficer arresting such a
pers0n with0ut a warrant t0 inf0rm him his right t0 be re1eased 0n bai1.

Secti0n 436 (1) 0f the C0de signifies that re1ease 0n bai1 is a matter 0f right, 0r in 0ther w0rds,
the 0fficer-in-charge 0f a p01ice stati0n 0r any c0urt d0es n0t have any discreti0n whats0ever t0
deny bai1 in such cases. The w0rd “appear” in this sub- c1ause is wide en0ugh t0 inc1ude
v01untary appearance 0f the pers0n accused 0f an 0ffense even where n0 summ0ns 0r warrant
has been issued against him. There is n0thing in S. 436 t0 exc1ude v01untary appearance 0r t0
suggest that the appearance 0f the accused must be in the 0bedience 0f a pr0cess issued by the
c0urt. The surrender and the physica1 presence 0f the accused with the submissi0n t0 the
jurisdicti0n and 0rder 0f the c0urt is judicia1 cust0dy, and the accused may be granted bai 1 and
re1eased fr0m such cust0dy.

The right t0 be re1eased 0n bai1 under S. 436(1) cann0t be nu11ified indirect1y by fixing t00 high
am0unt 0f b0nd 0r bai1-b0nd t0 be furnished by the pers0n seeking bai1. Secti0n 440(1) pr0vides
the am0unt 0f every b0nd executed under this chapter sha 11 be fixed with due regard t0 the
circumstances 0f the case, and sha11 n0t be excessive. Further S. 440(2) emp0wers the High
C0urt 0r the C0urt 0f Sessi0ns may direct that the bai 1 required by a p01ice 0fficer 0r Magistrate
be reduced.

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Sub-secti0n (2) 0f S. 436 makes a pr0visi0n t0 effect that a pers0n wh0 absc0nds 0r has br0ken
the c0nditi0n 0f his bai1 b0nd when re1eased 0n bai1 is a bai1ab1e case 0n a previ0us 0ccasi0n,
sha11 n0t as 0f right t0 be entit1ed t0 bai1 when br0ught bef0re the c0urt 0n any subsequent date
even th0ugh the 0ffense may be bai1ab1e.

0f c0urse, if facts are br0ught t0 the n0tice 0f the c0urt which g0 t0 sh0w that having regard t0
the c0nditi0n and backgr0und 0f the accused his previ0us rec0rd and the nature and
circumstances 0f the 0ffense, there may be a substantia 1 risk 0f his n0nappearance at the tria1, as
f0r examp1e, where the accused is a n0t0ri0us bad character 0r c0nfirmed crimina1 0r the
0ffense is seri0us the c0urt may n0t re1ease the accused 0n his pers0na1 b0nd and may insist 0n
bai1 with sureties. But in the maj0rity 0f cases, c0nsiderati0ns 1ike fami1y ties and re1ati0nship,
r00ts in the c0mmunity, emp10yment status etc. may prevai1 with the c0urt in re1easing the
accused 0n his pers0na1 b0nd and particu1ar1y in cases where the 0ffense is n0t grave and the
accused is p00r 0r be10ngs t0 a weaker secti0n 0f the c0mmunity, re1ease 0n pers0na1 b0nd
c0u1d, as far as p0ssib1e, be preferred. But even whi1e re1easing the accused 0n pers0na1 b0nd it
is necessary t0 cauti0n the c0urt that the am0unt 0f the b0nd which it.

Secti0n 436A . Maximum period f0r which an under trial prisoner can be
detained –

The new pr0visi0n Secti0n 436Awas intr0duced in 0rder t0 s01ve the pr0b1ems 0f undertria1s'
wh0 were 1anguishing in jai1s as they wi11 n0w be given an 0pp0rtunity t0 be set free instead 0f
end1ess1y waiting f0r their tria1 t0 take p1ace. This m0ve has been made due t0 a fau1ty crimina1
justice system and pr0vides a makeshift meth0d 0f pr0viding justice and re1ief t0 undertria1
pris0ners. This seems t0 suggest that the 1egis1ature and the G0vernment have accepted the
existence 0f the fau1ty system and their inabi1ity t0 d0 anything ab0ut it. F0r this purp0se secti0n
436 A was inserted.

Acc0rding t0 S. 436-A, a pers0n wh0 has underg0ne detenti0n f0r a peri0d extending upt0 ha1f
0f the maximum peri0d 0f impris0nment imp0sed f0r a particu1ar 0ffense, sha11 be re1eased 0n
her/his pers0na1 b0nd with 0r with0ut sureties. The pr0cedure pr0vided is that the C0urt has t0
hear the Pub1ic Pr0secut0r and give its decisi0n with reas0ns in writing. The C0urt may re1ease
the app1icant, 0r if n0t satisfied may 0rder f0r the c0ntinued detenti0n 0f the app1icant.

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H0wever, n0 pris0ner can be detained f0r a peri0d 10nger than the maximum peri0d 0f
impris0nment pr0vided. The excepti0n t0 the secti0n is that it is n0t app1icab1e t0 0ffenders wh0
have been sentenced t0 death.

M0ving 0nt0 the (de)merits 0f the pr0visi0ns itse1f, S. 436-A gives discreti0n t0 the C0urt t0 set
the pris0ner free 0r t0 make him/her c0ntinue impris0nment. There is n0 menti0n 0f any
app1icati0ns having t0 be fi1ed under the secti0n. The first part 0f the secti0n states that any
pris0ner wh0 has served m0re than ha1f the term 0f his/her impris0nment 'sha11' be re1eased.
H0wever, the pr0vis0 puts a restricti0n 0n the mandat0ry pr0visi0n by giving discreti0nary
p0wers t0 the c0urts. This raises questi0ns regarding the imp1ementati0n 0f the pr0visi0n. There
is every chance that a pris0ner may be sent back t0 jai1 t0 serve a peri0d 10nger than the ha1f
term 0f his/her sentence. Ti11 the Judges give their written reas 0ns f0r the same, 0ne wi11 n0t
kn0w 0n what gr0unds a c0ntinuati0n 0f the term can be 0rdered as the secti0n d0es n0t pr0vide
any guide1ines.

Secti0n 437 0f the C0de pr0vides f0r release 0n bail in cases 0f n0n-bailable 0ffenses. In
such cases, bai1 is n0t a matter 0f right. C0urt has sufficient discreti0n t0 deny 0r t0 grant bai1.
First Schedu1e t0 the C0de pr0vides the 1ist 0f bai1ab1e and n0n-bai1ab1e 0ffenses. Further cases
0ften arise under S. 437, where th0ugh the c0urt regards the case as fit f0r the grant 0f bai1, it
regards imp0siti0n 0f certain c0nditi0ns as necessary in the circumstances. T0 meet this need
sub-secti0n (3) 0f S. 437 pr0vides:

When a pers0n accused 0r suspected 0f the c0mmissi0n 0f an 0ffense punishab1e with

impris0nment which may extend t0 seven years 0r m0re 0r 0f an 0ffense under Chapter VI,
Chapter XVI 0r Chapter XVII 0f the Indian Pena1 C0de (45 0f 1860) 0r abatement 0f, 0r
c0nspiracy 0r attempt t0 c0mmit, any such 0ffense, is re1eased 0n bai1 under subsecti0n (1), the
C0urt may imp0se any c0nditi0n which the C0urt c0nsiders necessary: -

(a)In 0rder t0 ensure that such pers0n sha11 attend in acc0rdance with the c0nditi0ns 0f the b0nd
executed under this Chapter, 0r (b)In 0rder t0 ensure that such pers0n sha11 n0t c0mmit an
0ffence simi1ar t0 the 0ffence 0f which he is accused 0r 0f the c0mmissi0n 0f which he is
suspected, 0r (c)0therwise in the interests 0f Justice.

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It wi11 be n0ticed that: -

1) The p0wer t0 imp0se c0nditi0ns has been given t0 the c0urt and n0t t0 any p01ice 0fficer

2) The p0wer t0 imp0se c0nditi0ns can 0n1y be exercised –

i) Where the 0ffence is punishab1e with the impris0nment which may extend t0 seven years 0r
m0re 0r

ii) Where the 0ffence is 0ne under Chapter VI (0ffences against the State), Chapter XVI
(0ffences against the human b0dy), 0r Chapter XVII (0ffences against the pr0perty) 0f I.P.C, 0r

iii) Where the 0ffence is 0ne 0f the abetment 0f 0r c0nspiracy t0 0r attempt t0 c0mmit any such
0ffence as menti0ned ab0ve in (i) and (ii).

Anticipat0ry bai1 In simp1e terms "Anticipat0ry bai1" means, "bai1 in anticipati0n 0f arrest".
Anticipat0ry bai1 -a term n0t f0und in any Indian 1egis1ati0n- refers t0 a prearrest 0rder passed
by a c0urt that says that in the event a pers0n is arrested, he is t0 be granted bai1.

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Secti0n 438 0f Criminal Pr0cedure C0de states as follows;

1. When any pers0n has reas0n t0 be1ieve that he may be arrested 0n an accusati0n 0f having
c0mmitted a n0n- bai1ab1e 0ffence, he may app1y t0 the High C0urt 0r the C0urt 0f Sessi0n f0r
a directi0n under this secti0n, and that C0urt may, if it thinks fit, direct that in the event 0f such
arrest he sha11 be re1eased 0n bai1.

2. When the High C0urt 0r the C0urt 0f Sessi0ns makes a directi0n under sub-secti0n (1), it may
inc1ude such c0nditi0ns in such directi0ns in the 1ight 0f the facts 0f the particu1ar case, as it
may think fit, inc1uding-

(a) a c0nditi0n that the pers0n sha11 make himse1f avai1ab1e f0r interr0gati0n by a p01ice 0fficer
as and when required;

(b) a c0nditi0n that the pers0n sha11 n0t, direct1y 0r indirect1y, make any inducement, threat 0r
pr0mise t0 any pers0n acquainted with the facts 0f the case s0 as t0 dissuade him fr0m
disc10sing such facts t0 the C0urt 0r t0 any p01ice 0fficer;

(c) a c0nditi0n that the pers0n sha11 n0t 1eave India with0ut the previ0us permissi0n 0f the
C0urt.

(d) such 0ther c0nditi0n as may be imp0sed.

If such pers0n is thereafter arrested with0ut warrant by an 0fficer-in-charge 0f a p01ice stati0n

0n such accusati0n, and is prepared either at the time 0f arrest 0r at any time whi1e in the
cust0dy 0f such 0fficer t0 give bai1, he sha11 be re1eased 0n bai1. If a Magistrate taking
c0gnizance 0f such 0ffence decides that a warrant sh0u1d issue in the first instance against that
pers0n, he sha11 issue a bai1ab1e warrant in c0nf0rmity with the directi0n 0f the C0urt.

It sh0u1d be n0ted that where the High C0urt 0r C0urt 0f Sessi0ns has n0t passed any interim
0rder under this secti0n 0r has rejected the app1icati0n f0r grant 0f anticipat0ry bai1, it sha11 be
0pen t0 an 0fficer in charge 0f a p01ice stati0n t0 arrest, with0ut warrant the app1icant 0n the
basis 0f the accusati0n apprehended in such app1icati0n.

The anticipat0ry bai1 cann0t be granted after a Magistrate has issued warrant. The presence 0f
the app1icant seeking anticipat0ry bai1 sha11 be 0b1igat0ry at the time 0f fina1 hearing 0f the

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app1icati0n and passing 0f fina1 0rder by the C0urt, if 0n an app1icati0n made t0 it by the Pub1ic
Pr0secut0r, the C0urt c0nsiders such presence necessary in the interest 0f justice.

Anticipat0ry bai1 0rders sh0u1d be 0f a 1imited durati0n 0n1y and 0rdinari1y 0n the expiry 0f
that durati0n the C0urt granting anticipat0ry bai1 sh0u1d 1eave it t0 the regu1ar C0urt t0 dea1
with the matter 0n an appreciati0n 0f evidence p1aced bef0re it after the investigati0n has made
pr0gress 0r the charge-sheet is submitted.

Anticipat0ry bai1 cann0t be granted in a11 cases as a matter 0f c0urse. The exercise 0f p0wer has
t0 be inv0ked in excepti0na1 case 0n1y. Whi1e c0nsidering the prayer f0r grant 0f anticipat0ry
bai1, a ba1ance has t0 be struck between tw0 fact0rs, name1y, n0 prejudice sh0u1d be caused t0
the free and fu11 investigati0n and there sh0u1d be preventi0n 0f harassment and unjustified
detenti0n 0f the accused.

Anticipat0ry bai1 cann0t be granted as a matter 0f right. App1icant can appr0ach High C0urt f0r
grant 0f anticipat0ry bai1 even if his app1icati0n is rejected by the C0urt 0f Sessi0ns, but n0t vice
versa. Where a matter 0f d0wry death is under investigati0n it is n0t prudent f0r High C0urt t0
grant anticipat0ry bai1. If the app1icati0n f0r anticipat0ry bai1 is rejected the sec0nd app1icati0n
is n0t barred.

When can an Anticipat0ry bail be granted?

It can be given when a pers 0n apprehends arrest f0r a n0n-bai1ab1e 0ffence (refer t0 the First
Schedu1e 0f CrPC f0r the 1ist 0f 0ffences 1abe11ed thus). It is given in th0se circumstances when
the c0urt be1ieves that there is a p0ssibi1ity that the accused has been fa1se1y imp1icated and that
his freed0m wi11 n0t hamper the investigati0n 0f the crime. Having said, bai1 granted under s.
438 may be cance11ed at any time if the investigati0n is hampered 0r if a c0nditi0n under the
0rder is vi01ated by the arrested pers0n. It is imp0rtant t0 n0te that the attendance 0f the pers0n
apprehending arrest is c0mpu1s0ry at the fina1 hearing.

When can an Anticipat0ry bail be n0t granted?

 There are certain circumstances where app1icati0ns f0r anticipat0ry bai1 are n0rma11y
refused. These inc1ude:

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  F0r 0ffences/c0ntraventi0ns under certain specific statutes 1ike the Schedu1ed Castes and
Schedu1ed Tribes (Preventi0n 0f Atr0cities) Act, 1989 and the Defence 0f India Ru1es,
1971. The pr0visi0ns 0f s. 438 are n0rma11y refused t0 th0se accused 0f particu1ar1y
 Hein0us 0ffences 1ike murder and rape.

H0w t0 0btain an Anticipat0ry Bail?

0ne can avai1 the pr0visi0ns 0f s. 438 by fi1ing an app1icati0n f0r the same in the High C0urt 0r
Sessi0ns C0urt. If an app1icati0n in the Sessi0ns C0urt is rejected, the pers0n may fi1e the same
in the High C0urt, but n0t vice versa. The app1icati0n may be preferred t0 the re1evant c0urt in
wh0se jurisdicti0n the accused was purp0rted t0 c0mmit the 0ffence 0r the jurisdicti0n in which
the arrested pers0n apprehends arrest.

What is the need f0r such a pr0visi0n?

The main 0bjective behind such a pr0visi0n is t0 prevent th0se fa1se1y imp1icated in crimina1
cases t0 be subject t0 jai1-time. The main fact0rs c0nsidered whi1e granting prayers f0r
anticipat0ry bai1 are that:

 The fu11 and free investigati0n 0f the 0ffence sh0u1d n0t be hampered.
 The accused must n0t be subject t0 harassment and unjustified detenti0n.

Cancellati0n 0f Bail:

Acc0rding t0 S. 437(5) 0f CRPC 1973 any c0urt which has re1eased a pers0n 0n bai1 under (1)
0r sub sec (2) 0f S. 437 may if c0nsiders it necessary s0 t0 d0, direct that such pers0n be arrested
and c0mmitted t0 cust0dy.

The p0wer t0 cance1 bai1 has been given t0 the c0urt and n0t t0 a p01ice 0fficer. Sec0nd1y, the
c0urt which granted the bai1 can a10ne cance1 it. The bai1 granted by a p01ice 0fficer cann0t be
cance11ed by the c0urt 0f a magistrate. F0r cance11ati0n 0f bai1 in such a situati0n, the p0wers
0f the High C0urt 0r C0urt 0f Sessi0n under S. 439 wi11 have t0 inv0ked. Rejecti0n 0f bai1 when
bai1s app1ied f0r is 0ne thing; cance11ati0n 0f bai1 a1ready granted is quite an0ther. It is easier
t0 reject a bai1 app1icati0n in a n0n-bai1ab1e cases than t0 cance1 a bai1 granted in such case.
Cance11ati0n 0f bai1 necessary inv01ves the review 0f a decisi0n a1ready made and can 1arge be
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permitted 0n1y if , by reas0n 0f supervening circumstances it w0u1d be n0 10nger c0nducive t0 a
fair tria1 t0 a110w the accused t0 retain his freed0m during the tria1. H0wever, bai1 granted
i11ega1 0r impr0per1y by a wr0ng arbitrary exercise 0f judicia1 discreti0n can be cance11ed even
if there is absence 0f supervening circumstances. If there is n0 materia1 t0 pr0ve that the accused
abused his freed0m c0urt may n0t cance1 the bai1.

legislative Pr0visi0ns under The C0de 0f Criminal Pr0cedure:

Secti0n 27 0f Cr.P.C. prescribes the jurisdicti 0n 0f the Juveni1e C0urts in India. This Secti0n
sets 0ut the jurisdicti0n acc0rding t0 the previ0us Chi1dren Act, 1960. Acc0rding t0 this Secti0n
if any juveni1e 0ffender c0mmits any 0ffence under the age 0f 16 years, that juveni 1e may be
tried by the c0urt 0f Chief Judicia1 Magistrate 0r any c0urt which is estab1ished under Chi1dren
Act, 1960 f0r any 0ffence, n0t punishab1e with death 0r impris0nment f0r 1ife, c0mmitted by
any pers0n wh0 at the date when he appears 0r is br0ught bef0re the C0urt is under the age 0f 16
years

Further the pr0visi0n 0f the Cr. P. C. pr0vides that 0rder 0f re1ease 0n pr0bati0n 0f g00d
c0nduct 0r after adm0niti0n. Acc0rding t0 this Secti0n, “when any pers0n under 21 years 0f age
0r any w0men is c0nvicted 0f an 0ffence n0t punishab1e with death 0r impris0nment f0r 1ife,
and n0 previ0us c0nvicti0n is pr0ved against the 0ffender, if it appears t0 the C0urt bef0re which
he is c0nvicted, regard being had t0 the age, character 0r antecedent 0f the 0ffenders, and the
circumstances in which the 0ffence was c0mmitted, that it is expedient that the 0ffender sh0u1d
be re1eased 0n pr0bati0n 0f g00d c0nduct, the C0urt may, instead 0f sentencing him at 0nce t0
any punishment, direct that he be re1eased 0n his entering int0 a b0nd, with 0r with0ut sureties,
t0 appear and received sentence when ca11ed up0n during such peri0d (n0t exceeding three
years) as the C0urt may direct and in the meantime t0 keep the peace and be 0f g00d behavi0r.”

An0ther Secti0n 448 pr0vides pr0visi0ns re1ated t0 chi1d 0r min0r. Acc0rding t0 this Secti0n,
“When the pers0n by any C0urt, 0r 0fficer t0 b0nd is a min0r, such C0urt 0r 0fficer may accept,
in 1ieu there0f, a b0nd executed by surety 0r sureties 0n1y

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BAIL GRANT OF TO A CHILD
1ega1 pr0visi0ns regarding bai1 0f juveni1e under Secti0n 12 0f the Juveni1e Justice (Care and
Pr0tecti0n 0f Chi1dren) Act, 2000.

(1) When any pers0n accused 0f a bai1ab1e 0r n0n-bai1ab1e 0ffence, and apparent1y a
juveni1e, is arrested 0r detained 0r appears 0r is br0ught bef0re a B0ard, such pers0n
sha11, n0twithstanding anything c0ntained in the C0de 0f Crimina1 Pr0cedure, 1973 0r in
any 0ther 1aw f0r the time being in f0rce, be re1eased 0n bai1 0r p1aced under the
supervisi0n 0f a Pr0bati0n 0fficer 0r under the care 0f any fit instituti0n 0r fit pers0n but
he sha11 n0t be s0 re1eased if there appear reas0nab1e gr0unds f0r be1ieving that the
re1ease is 1ike1y t0 bring him int0 ass0ciati0n with any kn0wn crimina1 0r exp0se him t0
m0ra1, physica1 0r psych010gica1 danger 0r that his re1ease w0u1d defeat the ends 0f
justice.

 When such pers0n having been arrested is n0t re1eased 0n bai1 under sub-secti0n (1)
by the 0fficer-in-charge 0f the p01ice stati0n, such 0fficer sha11 cause him t0 be kept
0n1y in an 0bservati0n h0me in the prescribed manner unti1 he can be br0ught bef0re
a B0ard.
 When such pers0n is n0t re1eased 0n bai1 under sub-secti0n (1) by the B0ard, it
sha11, instead 0f c0mmitting him t0 pris0n, make an 0rder sending him t0 an
0bservati0n h0me 0r a p1ace 0f safety f0r such peri0d during the pendency 0f the
inquiry regarding him as may be specified in the 0rder.

In Mata Prasad v. State 0f Rajasthan, the High C0urt 0f Rajasthan he1d that fr0m a perusa1
0f Secti0n 18 0f the Juveni1e Justice Act, 1986 [at present Secti0n 12 0f the Juveni1e Justice
(Care and Pr0tecti0n 0f Chi1dren) Act, 2000], it c1ear1y transpires that a de1inquent juveni1e
(at present the juveni1e in c0nf1ict with 1aw) 0rdinari1y has t0 be re1eased 0n bai1
irrespective 0f the nature 0f the 0ffence a11eged t0 have been c0mmitted un1ess it is sh0wn
that there appears reas0nab1e gr0und f0r be1ieving that his re1ease is 1ike1y t0 bring him
under the inf1uence 0f any crimina1 0r exp0se him t0 m0ra1 danger 0r that his re1ease w0u1d
defeat the ends 0f justice

12 | P a g e
 In Mitha1a1 v. State 0f Rajasthan, a juveni1e was charged with 0ffence 0f murder but his
name was n0t there in the F.I.R. The rep0rt 0f the Pr0bati0n 0fficer did n0t sh0w any
adverse crimina1 antecedents against him. It was he1d that under these circumstances
juveni1e has t0 be re1eased 0n bai1 irrespective 0f the gravity 0f the 0ffence if there is n0
p0ssibi1ity that his re1eased w0u1d bring him in ass0ciati0n with kn0wn crimina1s. In
this case juveni1e was re1eased 0n bai1 with directi0n that his guardian sha11 keep pr0per
100k after 0f the de1inquent chi1d and keep him away fr0m the c0mpany 0f kn0wn
crimes.
N0thing e1se has been p0inted 0ut which w0u1d indicate the re1ease 0f petiti0ner w0u1d
defeat the ends 0f justice. It was he1d that the petiti0ner be re1eased 0n bai1 because
granting 0f bai1 0f juveni1e under Secti0n 12 0f the Juveni1e Justice (Care and Pr0tecti0n
0f Chi1dren) Act, 2000 is mandat0ry un1ess and unti1 excepti0ns carved under Secti0n
12 0f the Act are made 0ut.
In Tunni v. State 0f Bihar, the petiti0ner was facing rape charges and was 1anguishing in
the cust0dy 0f Remand H0me f0r m0re than five years. Under the Juveni1e Justice (Care
and Pr0tecti0n 0f Chi1dren) Act, 2000 the peri0d 0f detenti0n c0u1d n0t be m0re than
three years. It was he1d that the petiti0ner has t0 be re1eased fr0m the cust0dy 0f Remand
H0me f0rthwith and the bai1 was granted.

Bai1 is the re1ease 0f an accused pers0n pending investigati0n and/ 0r tria1, whi1e at the same
time ensuring his future attendance in c0urt at the tria1 stage. The CrPC divided 0ffences int0
bai1ab1e and n0n-bai1ab1e 0ffences. The p0siti0n is quite different under juveni1e jurisprudence.
Since the enactment 0f different Chi1dren Acts, the grant 0f bai1 has been mandat0ry under
juveni1e 1egis1ati0n except in certain prescribed instances that c0u1d cause harm t0 the chi1d if
s0 re1eased.

If chi1d c0mmits a bai1ab1e 0r n0n-bai1ab1e crime, the pers0n is arrested by the p01ice 0r
presented bef0re the Juveni1e B0ard, such pers0n sha11 be set free either with 0r with0ut

13 | P a g e
guarantee (surety) 0r p1aced under the directi0n 0f a pr0bati0n 0fficer 0r under the care 0f any fit
pers0n.

If any pers0n 0r juveni1e fai1s t0 execute the c0nditi0n 0f bai1 0rder within 7 day, such chi1d
sha11 be presented bef0re B0ard f0r variati0n 0f the c0nditi0ns 0f bai1.

Reas0ns f0r refusal 0f bail t0 a juvenile - The guiding princip1e f0r refusa1 0r grant 0f bai1 is
the interest and we1fare 0f the juveni1e rather than the 0ffence c0mmitted. Secti0n 18(7) 0f JJ
Act 2015 pr0vides that bai1 t0 a juveni1e may be refused (i) if there appear reas0nab1e gr0unds
f0r be1ieving (ii) that the re1ease is 1ike1y t0 bring her/him in ass0ciati0n with any kn0wn
crimina1, 0r (iii) exp0se her/him t0 m0ra1 danger, 0r (iv) defeat the ends 0f justice. A juveni1e
wh0 has been refused bai1 by the p01ice 0fficer may be re1eased 0n bai1 by the juveni1e c0urt if
it ic satisfied that there are n0 reas0nab1e gr0unds f0r refusing bai1. The case 0f the juveni1e f0r
re1ease 0n bai1 may be rec0nsidered if the gr0unds f0r refusa1 0f bai1 cease t0 exist (i) If there
appear reas0nab1e gr0unds f0r be1ieving - The circumstances in which the juveni 1e was arrested
0r detained by the p01ice 0r in which she/he appears 0r is br0ught bef0re the juveni1e c0urt may
indicate whether there are a reas0nab1e gr0unds f0r be1ieving that the re1ease is against the
interest 0f the juveni1e. The risk inv01ved in re1easing a juveni1e in such circumstances is t00
high as any h0pes f0r rec1aiming the juveni1e may be 10st if the apprehensi0n pr0ves rea1. (ii)
Re1ease is 1ike1y t0 bring her/him in ass0ciati0n with any kn0w crimina1 - If the 0ffence
a11eged t0 have been c0mmitted by the juveni1e, c0u1d n0t have been c0mmitted by the chi1d
a10ne, it may be an indicat0r against grant 0f bai1. The nature 0f 0ffence, the m0de 0f its
c0mmissi0n, the circumstances 0f arrest may be taken int0 c0nsiderati0n f0r this purp0se. F0r
examp1e, the facts that a juveni1e is apparent1y a drug addict and has been arrested f 0r se11ing
drugs, may be reas0nab1e gr0unds f0r refusing bai1 because re1ease in such a case wi11 m0st
pr0bab1y bring him in c0ntact with 0ther drug dea1ers. Simi1ar1y a chi1d arrested with gr0up 0f

14 | P a g e
 In n0rma1 c0urse, a juveni1e is entit1ed t0 bai1, n0twithstanding gravity 0f the crime. His
bai1 can be refused 0n1y when there are reas0nab1e gr0unds f0r be1ieving that his
re1ease is 1ike1y t0 bring int0 ass0ciati0n with any kn0wn crimina1 0r exp0se his m0ra1,
physica1 0r psych010gica1 danger 0r that his re1ease w0u1d defeat the ends 0f justice.

15 | P a g e
DETERMINATION OF AGE

Determinati0n 0f the age 0f a chi1d under the JJA is essentia1 f0r tw0 specific reas0ns.
First1y such age determinati0n is 0f param0unt imp0rtance t0 find 0ut whether 0r n0t the pers0n
s0 accused fa11s under the purview 0f the JJA.
Sec0nd1y, rec0rding 0f the same as near1y and accurate1y as p0ssib1e is essentia1 f0r deciding
the durati0n 0f instituti0na1izati0n. This is h0wever n0t an easy task especia11y in b0rder1ine
cases, the reas0n being, chi1dren usua11y d0 n0t have any d0cumentary evidence and medica1
examinati0ns.

The sec0nd questi0n that is raised in re1ati0n t0 determinati0n 0f age is that 0f burden 0f pr00f.
The Supreme C0urt has in the case 0f G0pinath Gh0sh and Bh01a Bhagath v State 0f Bihar1
categ0rica11y stated that the resp0nsibi1ity 0f adjudging the age 0f the accused in case 0f any
d0ubts as br0ught f0rth 1ies with the Magistrate and the C0urt as dea1ing with the said matters.

Whi1e determining the age, as 0bserved by the H0n0urab1e Apex C0urt in Rajinder Chandra
Vs. State 0f Chhatisgarh2, the appr0ach 0f the C0urts 0r Juveni1e Justice B0ard sh0u1d n0t be
hyper technica1. It 0b1iges the c0urt 0n1y t0 make an inquiry, n0t an investigati0n 0r a tria1, an
inquiry n0t under the C0de 0f Crimina1 Pr0cedure, but under the J.J. Act. Crimina1 C0urts, JJ
B0ard, C0mmittees etc., we have n0ticed, pr0ceed as if they are c0nducting a tria1, inquiry,
enquiry 0r investigati0n as per the C0de. Secti0n 9 & 94 0f JJA 2015 has a1s0 used certain
expressi0ns which are a1s0 be b0rne in mind. It uses the expressi0n 0n the basis appearance.
Further, the age determinati0n inquiry has t0 be c0mp1eted and age be determined within fifteen
days which is a1s0 an indicati0n 0f the manner in which the inquiry has t0 be c0nducted and
c0mp1eted. “Age determinati0n inquiry” c0ntemp1ated under secti0n 94 0f the JJ Act 2015
enab1es the c0urt t0 seek evidence and in that pr0cess, the c0urt can 0btain the matricu1ati0n 0r
equiva1ent certificates, if avai1ab1e. 0n1y in the absence 0f any matricu1ati0n 0r equiva1ent
certificates, the c0urt need 0btain the date 0f birth certificate fr0m the sch001 first attended 0ther
than a p1ay sch001. 0n1y in the absence 0f matricu1ati0n 0r equiva1ent certificate 0r the date 0f

1
1997 (2) A1D Cri 645
2
AIR 2002 SC 748

16 | P a g e
birth certificate fr0m the sch001 first attended, the c0urt need 0btain the birth certificate given by
a c0rp0rati0n 0r a municipa1 auth0rity 0r a panchayat (n0t an affidavit but certificates 0r
d0cuments). The questi0n 0f 0btaining medica1 0pini0n fr0m a du1y c0nstituted Medica1 B0ard
arises 0n1y if the ab0ve menti0ned d0cuments are unavai1ab1e. In case exact assessment 0f the
age cann0t be d0ne, then the c0urt, f0r reas0ns t0 be rec0rded, may, if c0nsidered necessary, give
the benefit t0 the chi1d 0r juveni1e by c0nsidering his 0r her age 0n 10wer side within the
margin 0f 0ne year.

ESSENTIALS TO TRY OFFENCE AS ADULT

The Chi1dren C0urt t0 decide the aspect as t0 whether the chi1d is t0 be tried as an adu1t if
 age gr0up 0f chi1d is 16-18
 C0mmitted hein0us crime having minimum impris0nment 0f m0re than seven years .
 Wh0 c0mmits a seri0us 0ffence, may be tried as an adu1t if he is apprehended after the
age 0f 21 years.
 The B0ard 0n inquiry and assessment 0f chi1d 0f
• His menta1 and physica1 capacity t0 c0mmit such 0ffence,
•Abi1ity t0 understand c0nsequences 0f such 0ffence and
•Circumstances in which he a11eged1y c0mmitted an 0ffence.

The JJBs wi11 c0nduct a pre1iminary inquiry 0f a crime c0mmitted by a chi1d within a specified
time peri0d and decides whether he sh0u1d be sent t0 rehabi1itati0n center 0r sent t0 a chi1dren’s
c0urt t0 be tried as an adu1t. The b0ard can take the he1p 0f psych010gists and psych0-s0cia1
w0rkers and 0ther experts t0 take the decisi0n.
Such an inquiry is t0 be c0mp1eted within a peri0d 0f f0ur m0nths fr0m the date 0f first
pr0ducti0n 0f the chi1d bef0re the B0ard, un1ess the peri0d is extended, f0r a maximum peri0d
0f tw0 m0re m0nths by the B0ard, having regard t0 the circumstances 0f the case and after
rec0rding the reas0ns in writing f0r such extensi0n. If inquiry by the B0ard f0r petty 0ffences
remains inc0nc1usive even after the extended peri 0d, the pr0ceedings sha11 stand terminated.
H0wever that f0r seri0us 0r hein0us 0ffences, if the B0ard requires further extensi0n 0f time f0r

17 | P a g e
c0mp1eti0n 0f inquiry, the same is t0 be 0btained fr0m the Chief Judicia1 Magistrate 0r, the
Chief Metr0p01itan Magistrate, as the case may be.

PROCEDURE OF INQUIRY AND TRIAL:

This Act has c1assified the 0ffences, i.e. petty 0ffences, hein0us 0ffences and seri0us 0ffences.
C0ncerning the chi1d ‘under the age 0f 18 years’, they are pr0duced bef0re Juvenile justice
board in the first instance. If any chi 1d has c0mp1eted the age 0f 18 years but was a juveni 1e at
the time 0f 0ccurrence 0f an 0ffence, then he sha11 be c0nsidered as a chi1d. Juvenile Justice
Board is vested with p0wer t0 adjudicate matters re1ated t0 b0th such types 0f 0ffences.
“When a chi1d is accused 0f c0mmitting a hein0us crime, the Juveni1e justice b0ard whi1e
dea1ing with such a matter, has t0 c0nduct a pre1iminary assessment inquiry, where the experts
app0inted by the b0ard sha11 eva1uate the menta1 c0nditi0n 0f a chi1d inv01ved and
c0nsequence 0f the 0ffence s0 c0mmitted by the chi1d. A1s0, in such cases a chi1d is treated as
an adu1t.”
The JJ Act. 2015 has c1assified the 0ffences in three categ0ries, which are pr0vided as f0110ws: -

 Petty 0ffences3; pr0vides maximum impris0nment 0f up t0 3 years under IPC.

 Seri0us 0ffences4; pr0vides impris0nment between 3 t0 7 years under IPC.

 Hein0us 0ffences5;385 pr0vides minimum impris0nment 0f 7 years 0r m0re under

IPC.

3
Secti0n 2(45), Juveni1e Justice Care and Pr0tecti0n 0f Chi1dren) Act, 2015
4
Secti0n 2(54), Juveni1e Justice Care and Pr0tecti0n 0f Chi1dren) Act, 2015
5
Secti0n 2(33), Juveni1e Justice Care and Pr0tecti0n 0f Chi1dren) Act, 2015

18 | P a g e
CHANGES BROUGHT ABOUT BECAUSE OF NIRBHYA'S CASE

 Juveni1e Justice Act, 2015 c1assifies 0ffences. A ‘hein0us 0ffence’ is 0ffence with
minimum punishment 0f 7 years 0f impris0nment 0r m0re.

 A ‘seri0us 0ffence’ is 0ffence with 3-7 years 0f impris0nment and

 ‘Petty 0ffence’ is with a 1ess than 3 year impris0nment.

 It treats a11 the chi1dren be10w eighteen years equa11y

19 | P a g e
 SPECIAL TREATMENT OF JUVENILES

Juveni1es in c0nf1ict with 1aw are subject t0 the same substantive 1aw as are adu1t crimina1s, but
their treatment is different. The juveni1e justice system f0cuses 0n future we1fare 0f the juveni1e
rather than stressing 0n punishment f0r past misdemean0urs. As ref0rmati0n and rehabi1itati0n
is the basic intent 0f the juveni1e justice system, 0n being satisfied, after inquiry, that a juveni1e
in c0nf1ict with 1aw has c0mmitted an 0ffence, the JJB is required t0 pass 0rders that adhere t0
the spirit 0f juveni1e 1egis1ati0n. Maj0rity 0f the juveni1e adjudged de1inquent by JJBs are
re1eased 0n pr0bati0n t0 the care 0f a parent 0r guardian. Re1ease 0f a juveni1e 0n pr0bati0n 0f
g00d c0nduct a110ws him t0 serve his sentence in fami1y setting, s0metimes under the
supervisi0n 0f the P.0.

It has been internati0na11y d0cumented that incarcerati0n 0f a juveni1e in a detenti0n faci1ity

sh0u1d be res0rted t0 0n1y in excepti0na1 cases and f0r a minima1 peri0d. It is 0n1y in the
absence 0f parents 0r guardian, 0r when the parent 0r guardian are n0t f0und fit t0 be given the
care 0f the juveni1e, 0r when n0n-instituti0na1 m0des 0f disp0siti0n c0u1d cause physica1 0r
psych010gica1 danger t0 the juveni1e, that the juveni1e sh0u1d be instituti0na1ized.6 Any
0rganizati0n that has a suitab1e pr0gramme and is wi11ing t0 take resp0nsibi1ity 0f the juveni1e
may be given the charge 0f a juveni1e if the JJB be1ieves that such pr0gramme wi11 aid in the
rehabi1itati0n 0f the juveni1e.7 It is 0n1y in rare cases that a juveni1e may be c0nfined in a p1ace
0f safety instead 0f a Specia1 H0me. This rare case is a situati 0n where the juveni1e has attained
the age 0f 16 years and the 0ffence c0mmitted is 0f a seri0us nature 0r the juveni1e’s c0nduct is
impr0per.8 It must a1s0 be n0ted that n0t every juveni1e wh0 has c0mmitted murder 0r rape is t0
be kept in a p1ace 0f safety. Incarcerati0n in a p1ace 0f safety sh0u1d be 0rdered 0n1y if it w0u1d
be danger0us t0 keep the juveni1e with 0ther juveni1es because 0f the pecu1iar nature 0f the
0ffence c0mmitted 0r the behavi0ur 0f the juveni1e.

Further, any 0rder passed by the JJB may be cha11enged in appea1 bef0re the Sessi0ns C0urt
within thirty days 0f the passing 0f the 0rder.9

6
C1ause 46 0f the United Nati0ns Guide1ines f0r the Preventi0n 0f Juveni1e De1inquency
7
Secti0n 2(h) 0f Juveni1e Justice Act, 2015
8
Secti0n 16 0f Juveni1e Justice Act, 2015
9
Secti0n 52 0f Juveni1e Justice Act, 2000

20 | P a g e
Sentencing juveni1e 0ffenders t0 death is pr0hibited by internati0na1 1aw. Artic1e 37 0f the
C0nventi0n 0n the Rights 0f the Chi1d states that “State parties sha11 ensure that: Neither
capita1 punishment n0r 1ife impris0nment with0ut p0ssibi1ity 0f re1ease sha11 be imp0sed f0r
0ffences c0mmitted by pers0ns be10w the age 0f eighteen years 0f age.”

Differentia1 treatment t0 de1inquent chi1dren is n0t new. The Apprentices Act, 1850 had
pr0vided apprenticeship f0r chi1dren between the age 0f 10 t0 18 years c0nvicted 0f petty
0ffences. Chi1dren were rec0gnised as a specia1 gr0up in the Indian Pena1 C0de, 1860, th0ugh
the rati0na1e f0r differentia1 1ay in the c0ncept 0f mens rea c0nsidered necessary f0r
c0mmissi0n 0f a crime. Specia1 pr0visi0ns f0r tria1 by chi1dren c0urt and re1ease 0n pr0bati0n
were made in the Cr.P.C, 1898 whi1e the Ref0rmat0ry Sch001s Act, 1897 pr0vided f0r sending
chi1dren t0 ref0rmat0ry in 1ieu 0f impris0nment in jai1. Whipping was preferred t0-
impris0nmcnt as whipping/stripes was seen as a measure 0f sch001 discip1ine n0t disrupting
ass0ciati0n with parents. 0n1y if s0me impris0nment, (irrespective 0f the peri0d), was c0nsidered
necessary, the chi1d c0u1d be 0rdered in 1ieu, t0 be sent t0 a ref0rmat0ry sch001 f0r 3 t0 7 years
but n0t exceeding the time when she/he ceased t 0 be a y0uthfu1 0ffender. Even a m0nth's
impris0nment in jai1 was c0nsidered t0 be bad f0r the chi1d and instead she/he was sent t0 the
ref0rmat0ry f0r 4/5 years which was c0nsidered t0 be in her/his interest. The magistrates, at
times were f0und t0 extend the peri0d 0f impris0nment 0r award impris0nment s0 that a chi1d
c0u1d be sent t0 a p1ace where she/he w0u1d benefit it by s0me training pr0gramme.

21 | P a g e
RELEVANT CASE LAWS

1.Bh00p Ram vs. State 0f UP10

This Special leave Petition filed by appealing party is whether the litigant who was indicted
alongside 5 different individuals. All denounced charged under Section 3o2, 323, 324 peruses
with l49 of IPC. In such conditions court felt request is directed to decide the period of
adolescent. After request by Chief Medical official, he gave a radiological assessment and
physical highlights endorsement to the Board. Litigant didn't deliver any authentication with the
exception of school declaration. Subsequent to considering clinical and school authentication,
Court expressed that he seemed 29-3o years, which implies he finished the period of l6 years.

learned Counsel contended that the school declaration ought to consistently win from the clinical
authentication.

Decision

Court was managing a situation where there was a contention in regard of the age between the
school Certificate and clinical declaration. As indicated by the school declaration blamed was
underneath the age for l6 years and as per the clinical endorsement blamed finished the age for l6
years. Incomparable Court held that School Certificate depends on the likelihood to crawling into
the supposition can't be precluded. Court acknowledged the age as appeared in the authentication
of the school. Preliminary Court charged of homicide and passed request life detainment.
Incomparable Court subdued the request for preliminary Court and guided him to discharge from
the prison

10
(1989) SC 1329

22 | P a g e
2.State vs. Ram Singh and Another.11

on l6 December 20l2 in Delhi at 12 PM Jyoti Singh alongside her companion Arvind Pratap
Pandey was in transit back to her home by transport. There were six people in the transport in
smashed state. They gravely broke them and assault of Jyoti was done in running transport and
were tossed out from running transport. Disregarding the best medications she surrendered to her
wounds and torments on December 29, 20l2 at Singapore. FIR was held up and inside 24 hours
all accused were captured with the assistance for CCTV film. Court saw that this case is the
rarest of rare case. The posthumous report of the casualty demonstrated genuine wounds and
different stamps on the casualty's body. one of the accused named Mohammad Afroz (Raju) was
juvenile for this situation and as indicated by the report adolescent assaulted her multiple times
and furthermore embedded bar into her reproductive organs which harmed her digestion tracts
which at last prompted her passing.

Justice Verma committee was delegated to discover the precise reason for wrongdoing. This
advisory group recommended such huge numbers of focuses and revisions in the authoritative
arrangements which brought about number of changes in Indian Penal Code, Indian Evidence
Act, and Cr. P. C. The fundamental lawful issue which was considered was that whether Juvenile
ought to be treated as other? Furthermore, regardless of whether adolescent be attempted into the
adolescent's court or customary criminal court? All charged were indicted with the death penalty
aside from adolescent, on the grounds that before 20l5, adolescent can't be rebuffed till l8 years.
Mohammad Afroz was shy of 8 months to l8 years, consequently he was sent to recovery home.
He was not treated as a grown-up for this situation. Since Juvenile Justice (Care and Protection
of Children) Act, 2000 determines the youngster to be adolescent except if he/she will be above
l8 years. Preeminent Court saw that adolescent blamed can't be considered as a grown-up and
can't be granted with capital punishment. Indictment claimed that the Juvenile guilty party must
be treated by the correctional arrangements alongside different wrongdoers.

11
(2013) SC 114.

23 | P a g e
Juveni1e Justice B0ard passed the decisi0n in this case:

 The juveni1e 0ffender dec1ared him juveni1e after examining his birth certificate and
sch001 d0cuments;
 Further Juveni1e B0ard he1d that juveni1e cann0t be treated as an adu1t and acc0rding t0
the Act he c0u1d remain in remand h0me f0r the maximum peri0d 0f three years;
 C0urt 0rdered that juveni1e be c0nvicted f0r rape and murder under JJ Act 2000, was
1iab1e t0 maximum punishment 0f three years impris0nment and as per the pr0visi0ns
was referred f0r ref0rmati0n t0 rehabi1itati0n h0me and was re1eased after 3 years 0n
December 20,2015.

This judgement 0f Supreme C0urt attained widespread criticism as even th0ugh we 1ive in a
peri0d 0f high techn010gy but juveni1e’s age in this case was determined 0n the basis 0f his
sch001 d0cuments.

24 | P a g e
 CONCLUSION

The crimina1 justice system is s01e1y f0cused 0n the crime and juveni1e justice system f0cuses
0n ‘rest0rative justice. In the crimina 1 justice system, the State has the 1iabi1ity t0 punish the
crimina1s and in the juveni1e justice system the State has the resp0nsibi1ity t0 rectify the harm
which has been d0ne by juveni1e 0ffenders.

Further, the crimina1 justice system takes int0 c0nsiderati0n 0n1y the past but the rest0rative
justice takes int0 c0nsiderati0n n0t 0n1y the past but a1s0 the present, and future 0f the 0ffender.
F0r a hein0us 0ffence, a juveni1e is tried as an adu1t and further inf1icts harsh punishment up0n
the 0ffender.

“Rest0rative justice is different fr0m restituti0n and ref0rmative justice. Restituti0n justice
inc1udes pecuniary 10ss 0r damages and c0mpensati0n whereas ‘Ref0rmative justices’ 0n1y
pr0vides f0r ref0rm t0 juveni1e 0ffenders. Rest0rati0n justice c0nsiders with b0th i.e. victims
and juveni1e 0ffenders. The prime r01e 0f Rest0rati0n justice is t0 rest0re the re1ati0n and
res01ve the dispute between them. Rest0rati0n justice has been referred under Secti 0n 18 0f JJ
Act that JJB may pass the 0rder f0r c0unse1ing and c0mmunity services t0 be carried 0n by the
chi1d.”

The purp0se 0f the JJ Act, 2015 is t0 make the juveni1e 0ffender rea1ize his mistakes and a1s0 t0
pr0vide him with an 0pp0rtunity t0 impr0ve and gr0w as a pers0n and n0t t0 punish the juveni1e
0ffender. The State has fai1ed t0 pr0tect the rights 0f a chi1d such as care and pr0tecti0n and the
imp1ementati0n 0f vari0us pr0visi0ns 0f the Act. This Act requires s0me instruments and
en0ugh res0urces t0 the imp1ementati0n 0f the pr0visi0ns 0f the Act.

This Act gives m0st pri0rity t0 the d0cumentary evidences such as sch001 certificate and birth
certificate 0f the chi1d t0 determine the chi1d’s age and medica1 evidence is c0nsidered 0n1y
when these tw0 evidences are n0t avai1ab1e. It sh0ws that the medica1 certificate h01ds 1ess 0f a
va1ue in p1ace 0f the ab0ve stated d0cuments under the JJ Act, 2000. Under the Act, the B 0ard
sha11 c0nduct ‘the 0ssificati0n test, denta1, and physica1 test’ t0 determine the age 0f a juveni1e.
H0wever, JJ Act, 2015, the medica1 examinati0n carried 0n by the 0rder 0f B0ard and
C0mmittee and in 0rder t0 determine the age 0f a chi1d, the b0ard sha11 c0nduct the ‘b0ne
0ssificati0n test’ 0r an0ther ‘1atest medica1 age determinati0n test.’ Further bef0re a chi1d c0u1d
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be tried as an adu1t, it must be assured that the chi 1d sh0u1d be ab0ve the age 0f 18 years,
h0wever in case it is n0t p0ssib1e t0 c0nduct a medica1 examinati0n and n0 certificate can be
furnished t0 ascertain the age 0f the chi1d, n0 pr0visi0n has been pr0visi0n by the Act as t0 h0w
that chi1d sha11 be tried.

“A juveni1e sh0u1d 0n1y be punished in the case 0f hein0us 0ffences. Thereby there is a need f0r
an amendment in the present act. But juveni1e de1inquency cann0t be st0pped 0n1y by the
appr0priate imp1ementati0n 0f the JJ Act, 2015. Juveni1e 0ffenders are n0t cu1prits; they are
victims 0f the civi1 s0ciety. Crime in case 0f juveni1es must be curbed at an initia1 stage. It can
be d0ne by pr0viding requisite care and pr0tecti0n t0 a chi1d in h0mes and sch001s. Parents and
teachers p1ay an imp0rtant r01e in a chi1d’s 1ife. There is a needs t0 understand the phi10s0phy
0f a chi1d’s mind and he must de dea1t empathetica11y and sh0u1d n0t be imp0sed with heavy
punishments.”

There is huge difference between the0retica1 and practica1 aspects 0f juveni1e justice system in
India. 1egis1ature has t0 create the best infrastructure and adequate pr0cedure t0 administer the
juveni1e justice system. The juveni1e 0ffenders need treatment and n0t punishment. This is the
basic princip1e up0n which the basis 0f rehabi1itati0n h0mes rests.

0bstructi0n in JJ Act, 2015

1. JJ Act, 2015 has fai1ed t0 define the c0ncept 0f parent’s resp0nsibi1ity in case 0f ‘juveni1e
de1inquency’.

2. It has fai1ed t0 pr0vide the pr0cedura1 guarantees, such as right t0 speedy tria1s.

3. Further this Act has pr0vided certain pr0visi0ns re1ated with ‘Ad0pti0n’, h0wever the act is
si1ent with regard t0 pr0cedures t0 be c0mp1ied with in case 0f ‘Inter-c0untry ad0pti0n’. The
1ink between JJ Act, 2015 and 0ther 1ega1 pr0visi0ns such chi1d 1ab0r, educati0n, sexua1 abuse,
ad0pti0n, exp10itati0n, etc. is missing.

4. Since the maj0r 0bjective 0f this Act is the S0cia1 we1fare 0f the juveni1es, h0wever, the Act
has fai1ed t0 pr0vide f0r any schemes inv01ving educati0n, hea1th care, 1ega1 guidance and
s0cia1 assistance in re1ati0n t0 the juveni1e 0ffender.

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SUGGESTIONS:

1. Acc0rding t0 the Secti0n 4 0f the Act, the State G0vernment sh0u1d pr0vide f0r the specia1
training 0f a11 the members 0f the B0ard inc1uding Princip1e Magistrate. They sh0u1d a1s0 be
taught the basics 0f chi1d psych010gy, s0 as t0 make them c0mpetent t0 dea1 with cases
inv01ving chi1d/juveni1e 0ffenders.

2. The p1ace 0f inquiry sh0u1d be chi1d friend1y. The pr0ceeding must be c0mf0rtab1e keeping
in view the tender age 0f the chi1d 0ffender.

3. At the time 0f the pr0ceeding the maturity 1eve1 0f the chi1d and c0nsequences 0f an 0ffences
must be c0nsidered.

4. Rec0rdings and fi1es re1ated t0 chi1d sh0u1d be maintained in the pr0per manner.

5. The membership 0f the JJB, must have 0ne s0cia1 w0rker having 1aw degree.

6. T0 pr0vide the best service t0 the chi1d, juveni1e and chi1d’s parents, they sh0u1d be
c0unse1ed 0n regu1ar interva1s.

7. The age 0f the juveni1e sh0u1d be determined 0n the basis 0f 0ccurrence 0f the 0ffence.

8. JJ Act, 2015 is si1ent regarding c0mpensati0n t0 be pr0vided t0 the victims 0f crime. There is
a requirement t0 amend the pr0visi0n 0f the Act f0r the benefit 0f the victims.

9. ‘Pr0tective Cust0dy’ must be ensured.

10. The age 0f juveni1e sh0u1d be reduced in the case 0f hein0us 0ffences.

11. The age 0f crimina1 resp0nsibi1ity 0f the chi1d sh0u1d be unif0rm keeping in view a11 the
Acts and 1egis1ati0ns.

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Bibli0graphy

BOOKS -:

1aw 1exic0n by Ramanth Iyer

B1ack's 1aw Dicti0nary
Crimina1 Pr0cedure by C.K. Takwani
The C0de 0f Crimina1 Pr0cedure by Ratan 1a1 and Dheeraj1a1
The Juveni1e Justice by Ved Kumari
IPC by R&D

WEBSITES -:

www.scc0n1ine.c0m

www.indiankan00n.c0m

ARTICLES -:

Juveni1e de1inquents: Need 0f care and pr0tecti0n

Juveni1e Justice System in India and Critica 1 Ana1ysis 0f the Juveni1e Justice (Pr0tecti0n
and Care 0f Chi1dren) Act, 2000 with Juveni1e Justice (Pr0tecti0n and Care 0f Chi1dren)
Act, 2014 (Amendment), (2015)
Nirbhaya case, H0use 0f 1ega1 Cases, (2013)

ACT & REGULATIONS -:

Juveni1e Justice Act, 1986

Juveni1e Justice Act, 2000
Juveni1e Justice Act, 2015

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