Should the police file an FIR in all cases involving juveniles?
No. In matters involving juveniles, the police is required to file an FIR only when the offence alleged to have been committed by the juvenile is punishable with a sentence of seven or more years.However, if there is an adult co-accused, the FIR shall be registered irrespective of quantum of punishment.
Who shall produce a juvenile before the Juvenile Justice Board and by when?
A designated police officer known as the Juvenile Welfare Officer should produce a juvenile before the Juvenile Justice Board within 24 hours. This excludes the time taken for the journey to the Board. Production before the Board should be immediate and in no case later than 24 hours.
Who shall produce a juvenile before the Juvenile Justice Board and by when?
A designated police officer known as the Juvenile Welfare Officer should produce a juvenile before the Juvenile Justice Board within 24 hours. This excludes the time taken for the journey to the Board.
Production before the Board should be immediate and in no case later than 24 hours.
The Delhi High Court in its judgement dated ,
If the full Board is not sitting, a juvenile can be produced before an individual member of the Board.
Is the police supposed to produce all juveniles before the Juvenile Justice Board?
In all cases where a juvenile is apprehended, production before the Board is mandatory.
What are the specific circumstances where the police may or may not apprehend a juvenile?
- In serious offences involving punishment of more than seven years the juvenile will have to be necessarily apprehended.
- In cases where the punishment is less than seven years but it appears that the apprehension is in the interest of the juvenile and/or the juvenile is in the dual category of CNCP and CICL, the juvenile may be apprehended.
- In petty offences the cases can be disposed off at the police station level itself e.g. by way of advise or admonition. No apprehension is required in such cases, except where, unless the child has no parent/guardian or the parent/guardian are not fit to take care of the child and the child can be treated as CNCP.
Following are a few circumstances exemplifying what the police is required to do in such cases:
- Where the juvenile’s parents/guardians are available, the police should hand over the juvenile to his/her parents/guardians on an undertaking (see Format in Annexure**), requiring the parents/guardians to produce the juvenile before the Juvenile Justice Board as and when the Board may require, on a later date. The concerned police officer will have to inform the parents/guardians about the date on which the juvenile may be called for production before the Board.
- In some cases, such as cases involving petty offences, where the juvenile has come in conflict with law for the first time, the police may just leave the juvenile on advise and need not produce the juvenile before the Board. The matter can be disposed off at the police station itself.
- If there is a doubt on the question of age of the person alleged to have committed an offence of less than seven years i.e. the person appears to be a juvenile but could be a borderline case or an adult, the police should treat the person as a juvenile.
- Where the juvenile has no one to claim guardianship, he/she may be produced before the Board within 24 hours. The police will then have to take appropriate orders from the Board regarding the custody of the juvenile.
What should the police do if a child is apprehended for a crime that is punishable by a sentence of less than seven years?
In such cases the police should not file an FIR. These are cases where only a DD entry is supposed to be made by the police. However, if an adult is the co-accused, the FIR has to be registered. There can be no joint proceedings. The file of juvenile has to be produced before the JJB and not the regular court.
After making the DD entry, the police is required to prepare a social background report of the juvenile, a report stating the circumstances of the alleged offence, a report about recovery of any stolen articles from the juvenile, age proof and such other relevant documents.
The DD entry should be submitted to the Juvenile Justice Board at the earliest, preferably within 24 hours.
The Social Background Report, and Report of the circumstances of the alleged offence as well as apprehension (if any), will have to be produced before the Board before the first hearing.
What is a Social Background Report (SBR)?
A social background report (SBR) is a report prepared by the designated police officer about the social and economic condition of the juvenile apprehended by the police, and his family.
A SBR has to be prepared by the police for every juvenile, irrespective of whether the alleged offence committed by the juvenile is punishable with a sentence of less than seven years or more.
It shall include information about the following:
- Number of Family Members,
- Monthly Income,
- Literacy levels,
- Status of child’s education,
- Any information about the child’s day-to-day activities that may be collected from the child or his/her family.
The list is not exhaustive. However, great care needs to be taken in the preparation of a social background report.
Note: The SBR meant to be prepared by the police is not the same as the SIR (Social Investigation Report) that the Probation Officers are required to prepare.
Where should the police keep the apprehended juveniles before being produced in front of the Juvenile Justice Board?
Apprehended juveniles cannot be kept in a police lock-up or jails.Till such time that a juvenile can be produced before the Board, the police shall hand over the juvenile to the SJPU or the designated police officer (JWO). As far as possible, no juvenile should be kept in a police station once his/her medical examination is conducted.Whatever time a juvenile has to spend in a police station, must be in the presence of his/her parents/guardians or the social worker members of the SJPU. In case of a girl, a female police officer must be present.Even if a written order is not possible, the police should take a verbal order of a member of the Board to keep the juvenile in an observation home till such time that he/she can be produced before the Board.
Who is supposed to determine the age of the person allegedly accused of committing an offence and on what basis?
The law is very clear on this. It is for the Board to determine the age of a person produced before it. If a person alleged to have committed an offence ‘appears’ to be below the age of 18 years, the police should produce such a person before the Juvenile Justice Board and let the Board determine the age of such person.
The age of an offender must be determined with reference to the date on which the offence was committed and not the date on which he/she is produced before the competent authority. (Pratap Singh vs. State of Jharkhand, JT 2005(2) SC 271).
What evidence does the Board rely upon for age determination?
In order to determine whether the person brought before the Board is indeed a juvenile, the Board will rely upon the following evidence:
- The person’s birth certificate
- Entry in the school register at the time of admission
- High school mark sheets
- The Board can ask medical experts to give their opinion as to the age of the accused
- An X-ray bone-ossification test
However, while examining evidence such as an entry in the school register at the time of admission, the Board will see whether there were any irregularities in maintaining the register, and will check how reliable a source it is.The Supreme Court has also said that too much reliance cannot be placed on medical jurisprudence and toxicology while determining the age of an individual. This is because in a country as vast as ours with varied latitude, height, environment, vegetation, and nutrition, there cannot be uniformity in height and weight of people everywhere [Ram Deo Chauhan vs. State of Assam AIR 2001 SC 2331].
What if the accused person’s exact age cannot be determined?
The Board has the authority to grant the benefit of doubt to the accused and declare him/her a juvenile in cases where the age margin is too close to determine whether the person is a juvenile or an adult.
What will happen if a juvenile is brought before a Magistrate other than the Principal Magistrate of a Juvenile Justice Board?
If a juvenile is brought before a Magistrate who does not have the authority to exercise the powers of the Juvenile Justice Board under the JJ Act, the Magistrate will have to:
- Record his/her opinion that the person brought before him/her is a juvenile and,
- Forward the juvenile and the record of the proceedings to the Juvenile
- Justice Board, which has the authority to deal with the matter. The Board will then proceed to hold an inquiry as if the juvenile was originally brought before it.
- If such a Magistrate has doubts regarding the age of the person brought before him/her, the benefit of doubt would be in favour of that person.
- In such a situation where the Board is not sitting, a juvenile can be produced before an individual member of the Board.
Bail is a right, not a prerogative
Every juvenile in conflict with law in entitled to be released on bail, irrespective of whether the alleged offence committed by such juvenile is bailable or non-bailable. Release should not depend on the nature of alleged offence committed by the juvenile or whether the juvenile pleads guilty for having committed an offence. Considering their tender age, children below 18 are released on bail as a general rule. Even when the inquiry about the age is pending, a person who appears to be a juvenile must be released on bail. The bail may be given with or without a surety. To re-emphasise, a person below the age of 18 years cannot be kept in police lock-up or a jail.
Who can release a child on bail?
In bailable matters, the police can release a child on bail. But in all non-bailable matters involving juveniles, the Juvenile Justice Board is authorised to release a child on bail.
When can the Board deny bail?
Bail can only be denied if there is substantial reason to believe that after release –
- The juvenile is likely to get associated with a known criminal; or
- There is moral, physical and psychological danger to the juvenile; or
- The ends of justice stand defeated.
Every juvenile has a right to know the precise reason(s) for being denied bail. The order made on a bail application must therefore clearly mention the reason for denial of bail in detail. If there is any danger to the child, the order must not only state so, but also state why and from whom and what has led to this conclusion/opinion. This is a basic principle of fair hearing and justice.
The SBR prepared by the police plays an important role at this point. The Board may rely on it along with other documents produced by the police and the Social Investigation Report (SIR) prepared by the Probation Officer for denying bail.
Where should a juvenile be kept when he/she is not released on bail?
Juveniles who have not been granted bail due to special circumstances must be kept in places where they will remain safe. Any place or institution, where the person in charge, is willing to receive and take care of the concerned juvenile for the specified period, can be considered to be a place of safety. This can be a home for juveniles run by an NGO, or a charitable organisation. A police lock up or a jail is not considered a place of safety according to the Act. Therefore, if a juvenile has not been released on bail by the Board, then he/she can only be kept in an observation home or a place of safety while the inquiry is pending, and not in a jail.
What is an Observation Home?
The JJ Act empowers the State Government to establish and maintain observation homes in every district. These homes are used for the temporary reception of juveniles against whom inquiries are pending under the JJ Act. A juvenile who has been sent to an observation home must initially be kept in a reception unit of such home. Once the inquiry has been made as to his/her age, his/her physical and mental status, and the nature of the offence committed, the juvenile can then be admitted into the observation home.
Can the police file a charge sheet in cases involving juveniles?
Going by the principles of juvenile justice across the world, terms like charge sheet should not be used by the police or the Juvenile Justice Boards while dealing with matters involving juveniles. A “charge” is an accusation. In a criminal proceeding, the “charge” is an important step as it separates the inquiry from the trial. However, in juvenile justice matters there can be no “charge’ against a juvenile since the proceeding is not against a ‘criminal’ but against a ‘child alleged to be in conflict with law’ and it is not meant to be a criminal proceeding. There is no trial. All inquires have to be completed within four months.
However, the police can file a Final Report (This is the Police Investigation Report, which would amount to framing the charges on completion of police investigation if it were a case of an adult). Ideally the term Police Investigation Report should have been used in the Act also. Unfortunately, the juvenile justice law has always been amended in a great hurry and therefore even while stressing in principle on the need to change semantics, many of the terms used in the Criminal Procedure Code continue to be used for children too.
- For every distinct offence a separate charge must be framed.
- In any case involving a juvenile and an adult offender, the charges and subsequent proceedings must be separate and the juvenile has to be sent to the Juvenile Justice Board. Joint charges and joint proceedings cannot take place in such cases. (Sec. 18)
By when should the police file the ‘Final Report/Police Investigation Report’?
The Police Investigation report should be filed within sixty days (60 days) in cases where the alleged offence is liable for a punishment of less than seven years and, within ninety days (90 days) in cases involving a punishment of seven or more years.
- In case of petty offences, there is no question of police investigation report as the juvenile is not apprehended.
- In case of non-serious offences with punishment of less than seven years, where the child is not apprehended, the period for filing a police investigation report is 90 days. But where the juvenile is apprehended and not released, the police investigation report has to be filed within 60 days. If the report is not submitted within this period, the case shall be treated as closed.
- In serious offences the period is 60 days if the child is apprehended and not released and 90 days, where the child is apprehended but released. (see calendar)
Where should a child be kept once the commission of the offence is proved?
Children found guilty of commission of an offence through due process of law are placed in a ‘Special Home’ or a ‘Place of safety’, by an order of the Board.
What is a Special Home?
A juvenile whose guilt for committing an offence is proved beyond reasonable doubt cannot be sent to a prison. The JJ Act thus provides for a Special Home where such juveniles are sent for rehabilitation. Special homes may be managed by a voluntary organisation on an agreement with the concerned State Department.
What is a “Place of safety”?
A juvenile whose guilt for committing an offence is proved beyond reasonable doubt can also be placed in a ‘place of safety’. A ‘place of safety’ is also a facility established and maintained by the concerned State Department for receiving and rehabilitating juveniles held guilty for commission of offence by an inquiry of the Board.
When can the Board order a juvenile to be kept in a “place of safety”?
The Board has been given the power to order that a juvenile who has committed an offence be kept in a place of safety (and not a special home) if the following conditions are fulfilled:
- The juvenile is at least 16 years old; and
- The offence committed is so serious, or the juvenile’s conduct and behaviour have been such that it would not be in his/her interest or in the interest of other juveniles in the special home to send him to the special home; and
- None of the other courses of action laid down by the Act are appropriate or adequate.
In such cases:
- The Board must report the case to the State Government for its order.
- The State Government can then make such arrangements for the juvenile, as it thinks proper.
- It can order the juvenile to be kept under protective custody at a certain place, and on conditions that it thinks suitable.
How can the police maintain records of juveniles held guilty for commission of an offence?
According to the law, all relevant records of a juvenile held guilty by the Board are supposed to be removed after:
- The period prescribed for an appeal has lapsed; or
- The period prescribed by the rules framed under the JJ Act has lapsed (the JJ Rules of 2007 prescribe a maximum period of seven years).
One argument can be that the police need not worry about maintaining records of juveniles held guilty of committing an offence, as it is the Board that has to look into this aspect.The other argument is that since the Board can also order the police to maintain records, the police may keep the records of a juvenile held guilty by the Board till such time, as given above, provided that such records are kept in a safe place and are not maintained with the records of adult criminals. At all stages of the proceeding, the juvenile’s right to privacy and confidentiality must be protected.
Can the police share any previous record of commission of an offence by a juvenile or information about any ongoing case against a juvenile for public consumption e.g. police verification of passport or police verification of domestic servants? The police may share information about the previous proven commission of an offence by a juvenile or an ongoing case against a juvenile with public authorities for purposes other than those that would affect the employment of a juvenile. Since the law clearly states that any record of commission of an offence by a juvenile cannot be used as disqualification for his/her employment, there is no reason why the police should share such information sought by individuals employing children as domestic servants or in any other manner.
What happens to cases pending prior to the enforcement of the Juvenile Justice Act of 2000?
The provisions of Juvenile Justice Act of 2000 as amended in 2006 have retrospective effect. Therefore, in cases involving juveniles, which are pending in any court on the date of enforcement of this Act i.e. on 1.4.2001, including trials and subsequent proceedings by way of revision or appeal, the matter shall proceed on the basis of the JJ Act, 2000, its amendment in 2006 and the Juvenile Justice Rules of 2007/State Rules made in this regard. Even if the juvenile whose case was pending as on 1.4.2001 ceases to be below 18 years of age on this date, his/her case will be treated and dealt with as if he/she is a child in conflict with law. In fact the law now even empowers the Juvenile Justice Boards to review on their own or on a complaint, those cases which have been disposed off by any court, and determine the age of juvenility and pass an order in accordance with the provisions of the JJ Act of 2000 as amended in 2006 and the Central/State Rules made thereunder. The Juvenile Justice Act of 1986 was amended in the year 2000 and the new law came into force on 1 April 2001. This law too was later amended in 2006 to further clarify some positions, particularly the question of how should cases pending prior to the enforcement of the 2000 Act be dealt with.
Recently, the Supreme Court’s judgement in Hari Ram Vs. State of Rajasthan & Another (CRIMINAL APPEAL NO. 907_OF 2009) has also clarified the legal position as established above.