Landmark Judgment on grant of bail to juvenile and conduct of trial under Juvenile Justice Act 2015

We, thus, sum up the references by

holding as under:-

Q. (i). Under which provision of law, a

child, who has completed or is above the age

of 16 years and is alleged to have committed

a ‘heinous offence’ can maintain his

application during the pendency of

preliminary assessment by the Board under

Section 15 of the Act of 2015?

A. For the reasons recorded hereinabove, a

child, who has completed or is above the age of

16 years and is alleged to have committed a

‘heinous offence’ can maintain his application for

release on bail under Section 12 of the Act of

2015 during the pendency of preliminary

assessment by the Board under Section 15 of the

Act of 2015.

Q. (ii). Under which provision of law, a

child, who has completed or is above the age

of 16 years and is alleged to have committed

a ‘heinous offence’ can maintain his

application for release on bail after the

transfer of his case to the Children’s Court

for trial by the Board ?

A. For the reasons recorded hereinabove, a

child, who has completed or is above the age of

16 years and is alleged to have committed a

‘heinous offence’ can maintain his application for

release on bail under Section 12 of the Act of

2015 after the transfer of his case to the

Children’s Court.

Q. (iii). Whether the powers conferred

on the Board in the matter of bail to a

person, who is apparently a child alleged to

be in conflict with law are also available to

the Children’s Court ?

A. In view of clear, unambiguous and specific

stipulation in Section 8(2) of the Act of 2015,

which provides that the powers conferred on the

Board under the Act may also be exercised by the

High Court and the Children’s Court in the matter

of grant of bail to a person, who is apparently a

child and is alleged to have committed a bailable

or non-bailable offence, the powers conferred on

the Board under the Act of 2015 are also

available to the Children’s Court and the High

Court.

Q. (iv). Whether seriousness of the

offence alleged is a ground for rejecting the

bail in case of a child in conflict with law?.

A. Seriousness of the offence alleged cannot

be made a ground for rejecting bail under the Act

of 2015.

Q. (v). Whether an appeal under Section

101(5) of the Act of 2015 or an application

under Section 439 of the CrPC would be

maintainable before the High Court by any

person aggrieved by the order granting or

rejecting bail by the Children’s Court?

A. Against an order granting or refusing bail

passed by the Children’s Court, no application for

bail or cancellation of bail under Section 439(1)

or 439(2) of the CrPC shall lie before the High

Court and against such an order only an appeal

under Section 101(5) of the Act of 2015 would

be maintainable. The ‘phrase’ “in accordance with

the procedure specified in the Code of Criminal

Procedure” does not allude to application of the

entire CrPC to the Act of 2015. The said

reference to the CrPC in Section 101(5) of the

Act of 2015 only means that the procedure, and

not the substantive Sections, prescribed under

Chapter XXIX shall apply to the appeal that could

be filed under the said Section. To clarify further,

the appeal, in terms of Section 101(5) has to be

considered on the basis of material available on

the record, i.e., material produced before the

Board under Section 13 of the Act of 2015 and

considerations arrived at in terms of Section 12

of the Act of 2015 for the purpose of grant of

bail and not the considerations of grant of bail in

terms of Sections 437, 438 and 439 of the CrPC.

The reference in Section 101(5) to “procedure

specified in the Code of Criminal Procedure” does

not enlarge the scope of sub-sections to create a

substantive right in terms of Section 439 of the

CrPC in Section 101(5) of the Act of 2015.

Q. (vi). What is the scope of Section

19(1)(i) of the Act of 2015 in connection

with the trial of a child as an adult? Whether

the provisions of Section 19 of the Act of

2015 are mandatory or the Children’s Court

has to compulsorily follow the

recommendations of the Board made under

Section 15 read with Section 18(3) of the

Act of 2015 ?

A. Upon a case of a child having been

transferred to the Children’s Court, a duty has

been cast upon the Children’s Court to further

decide about the suitability of the child to be tried

as an adult. The words used in Section 19(1)(i)

and 19(1)(ii) of the Act of 2015 give two options

to the Children’s Court. First, to try the

transferred child as an adult and second not to

deal with child as an adult. The Children’s Court is

required to record its reason while arriving at a

conclusion whether the child should be treated as

child or an adult in view of Rule 13 (6) of the

Rules. In case, the Children’s Court decides to

deal with child as a child it has to conduct an

inquiry as a Board following the procedures for

trial of a summons case in accordance with the

provisions of Section 18 as would appear from

the words used in Section 19(1)(i) of the Act of

2015. In case, it decides to try the child as an

adult, it shall follow the procedure as prescribed

by the CrPC for the purpose of trial by Sessions

Court and pass appropriate orders after trial

without prejudice to the provisions of Sections 19

and 21 of the Act of 2015 considering special

‘needs of the child’ the tenets of ‘fair trial’ and

maintaining a ‘child friendly’ atmosphere as

provided under Section 19(1)(i) of the Act of

2015.

The provisions of Section 19(1) of the Act

of 2015 are mandatory. The Children’s Court

cannot dispense with the requirement of deciding

as to whether there is need to try the transferred

child as an adult or to deal with the transferred

child as a child.

Q. (vii). What is the scope of application

of the provisions of CrPC after the Board

transfers the trial of the case to the

Children’s Court having jurisdiction to try

such offences and the Children’s Court

decides that there is a need for trial of the

child as an adult?

A. The procedure followed by the Children’s

Court for trial of a child as an adult would be of a

warrant case and the proceedings in Chapter

XVIII prescribed under Sections 225 to 237 of

the CrPC, which deal with warrant cases by a

Court of Sessions only would be applicable while

trying a child as an adult, subject to exceptions

indicated under the Act of 2015.

IN THE HIGH COURT OF JUDICATURE AT PATNA

CRIMINAL APPEAL (SJ) No.2117 of 2019

LALU KUMAR @ LAL BABU @ LALLU,  Vs  The State of Bihar

CORAM: MR. JUSTICE ASHWANI KUMAR SINGH

and  MR. JUSTICE BIRENDRA KUMAR

(Per: MR. JUSTICE ASHWANI KUMAR SINGH)

Date :01-10-2019

In the aforementioned appeals, preferred under

Section 101(5) of the Juvenile Justice (Care and Protection

of Children) Act, 2015 (for short ‘the Act of 2015’), the

appellants have challenged the order passed by the

Children’s Court whereby their respective applications for bail

have been rejected in respect of cases in which they have

been made accused.

2. Since the facts of all the appeals are not

relevant, as they have been referred to the Division Bench

for the limited purpose, the facts are being extracted from

Cr. Appeal (SJ) No. 2117 of 2019.

3. The appellant in Cr. Appeal (SJ) No. 2117

of 2019 has been made accused in Buxar (Town) P. S. Case

No. 236 of 2018 dated 08.05.2018 registered inter alia

under Section 302 of the Indian Penal Code. He was taken

into custody on 09.05.2018 and was produced before the

Juvenile Justice Board (for short ‘Board’), Buxar. The Board,

in exercise of powers conferred under Section 94 of the Act

of 2015 determined his age to be 17 years, 2 months and

20 days on the date of commission of the offence. Since the

offence alleged to have been committed by the appellant is

heinous one and he had completed the age of 16 years on

the date of commission of the offence, the Board conducted

a preliminary assessment with regard to his mental and

physical capacity to commit such offence, ability to

understand the consequences of the offence and the

circumstances in which he had allegedly committed the

offence and passed an order that there is a need for trial of

the said child as an adult in accordance with the provisions

enumerated in Section 18(2) of the Act of 2015 vide order

dated 12.10.2018.

4. The appellant moved an application for

bail before the Children’s Court, Buxar for grant of bail in

Buxar (Town) P. S. Case No. 236 of 2018, which was

rejected vide order dated 11.12.2018.

5. Being aggrieved by the order passed by

the Children’s Court, the appellant filed an application for

bail before this Court under Section 439 of the Code of

Criminal Procedure, 1973 (for short ‘CrPC’) vide Cr. Misc.

No. 7470 of 2019.

6. The aforesaid Cr. Misc. No. 7470 of 2019

was dismissed as withdrawn with liberty to the appellant to

file appropriate application before the appropriate court vide

order dated 23.04.2019 as the counsel for the appellant

sought leave to withdraw the application on the ground of

juvenility of the appellant.

7. The said order dated 23.04.2019 is set

out hereinbelow :-

23.04.2019 “Heard.

Counsel for the petitioner seeks

permission to withdraw this application as

the petitioner is said to be juvenile.

Permission is granted.

Accordingly, this application filed in

connection with Buxar (T) P.S. Case no.

236 of 2018 is dismissed as withdrawn

with liberty to the petitioner to make

appropriate application before the

appropriate court.”

8. Thereafter, the appellant filed the instant

appeal under Section 101(5) of the Act of 2015 challenging

the order dated 11.12.2018 passed by the Children’s Court,

Buxar whereby his application for grant of bail was rejected.

9. Learned Single Judge while hearing the

appeal doubted maintainability of the appeal against the

order of the Children’s Court. After consideration of various

provisions of the Act of 2015, learned Single Judge framed

three questions and desired the same to be answered by a

Division Bench.

10. The operative part of the order dated

09.07.2019 whereby the learned Single Judge has referred

the case to Division Bench is set out hereinbelow :-

“14. After having been declared child in

conflict with law even relating to Buxar (T)

P. S. Case No.235 of 2018, after rejection

of prayer by the Children Court, the same

has been challenged through Criminal

Miscellaneous. Once the prayer of an

accused has been entertained by the Coordinate

Bench under Criminal

Miscellaneous, then in that circumstance,

whether an appeal in terms of Section

101(5) of the Act would be entertainable

while enjoying the same status. The

conflicting stand coupled with the order

dated 05.02.2019 passed under Cr.Misc.

No.4848 of 2019 gives an impression that

the issue in hand needs authoritative

pronouncement as, with great respect to

the esteemed brother, I did not agree. So,

the matter is to be considered by the

Division Bench and for that, the following

points are being formulated:-

a) Whether the child in conflict

with law falling in between 16 to 18

years should be acknowledged, dealt

with independently relating to

serious offence, heinous offences.

b) Whether the opportunity in

accordance with Section 12 of the

Act identifying the Board to pass an

appropriate order whenever child in

conflict with law is produced

regarding bail matter, could also

include the Children Court.

c) Whether the procedure so

allowed to be followed in accordance

with Section 19(1) of the Act will

attract the procedure of bail to be

cared under the Act or under the

Code. In the background of presence

of Section(1) as well as Section

101(5) of the Act.

15. Accordingly, office is directed to

place the matter before the Division Bench

after taking permission from Hon’ble the

Chief Justice.”

11. Since the reference was desired to be

resolved by a Division Bench, the same has come up for

consideration before this Court.

12. Subsequently, Cr. Appeal (SJ) Nos.1962

and 1549 of 2019 were filed under Section 101(5) of the Act

of 2015 by the respective appellants challenging the order

passed by the Children’s Court, Sitamarhi whereby their

respective applications for bail were rejected. Those appeals

have also been referred by the learned Single Judge to the

Division Bench to be heard together with Cr. Appeal (SJ) No.

2117 of 2019 as the issues involved are identical.

13. After having examined various statutory

provisions under the Act of 2015 and the CrPC and the

submissions advanced at the Bar in the light of reference

order of the learned Single Judge, following ancillary

questions of immense significance, have emerged and need

to be extensively dealt with :-

(i) Under which provision of law, a

child, who has completed or is above the age of

16 years and is alleged to have committed a

‘heinous offence’ can maintain his application for

release on bail during the pendency of

preliminary assessment by the Board under

Section 15 of the Act of 2015 ?

(ii) Under which provision of law, a

child, who has completed or is above the age of

16 years and is alleged to have committed a

‘heinous offence’ can maintain his application for

release on bail after the transfer of his case to

the Children’s Court for trial by the Board ?

(iii) Whether the powers conferred on

Board in the matter of bail to a person, who is

apparently a child alleged to be in conflict with

law are also available to the Children’s Court ?

(iv) Whether seriousness of the offence

alleged is a ground for rejecting the bail in case

of a child in conflict with law ?

(v) Whether an appeal under Section

101(5) of the Act of 2015 or an application

under Section 439 of the CrPC would be

maintainable before the High Court by any

person aggrieved by the order granting or

rejecting bail by the Children’s Court ?

(vi) What is the scope of Section 19(1)

(i) of the Act of 2015 in connection with the trial

of a child as an adult ? Whether the provisions

of Section 19 of the Act of 2015 are mandatory

or the Children’s Court has to compulsorily

follow the recommendations of the Board made

under Section 15 read with Section 18(3) of the

Act of 2015 ?

(vii) What is the scope of application of

the provisions of CrPC after the Board transfers

the trial of the case to the Children’s Court

having jurisdiction to try such offences and the

Children’s Court decides that there is a need for

trial of the child as an adult ?

14. We have heard Mr. Ajay Kumar Thakur,

Mr. Bachan Jee Ojha and Mr. Uday Kumar, learned

advocates for the appellants, Smt. Usha Kumari and Mr.

Zeyaul Hoda, learned Additional Public Prosecutors for the

State and Mr. Digvijay Kumar Ojha, learned advocate for the

informant of Buxar (Town) P. S. Case No. 236 of 2018.

15. Mr. Ajay Kumar Thakur, learned advocate

appearing for the appellant in Cr. Appeal (SJ) No.1962 of

2019 submitted that seriousness of the offence alleged is not

a ground for rejecting bail in a case of a child in conflict with

law. He argued that there is fundamental difference between

the Criminal Justice System and the Juvenile Justice System.

Under the Juvenile Justice System, emphasis is placed on

restoration and rehabilitation rather than on punitive action.

He contended that while considering an application for bail to

a child in conflict with law, Section 12 of the Act of 2015

needs to be read in consonance with three principles

mentioned in Section 3 of the Act of 2015, i.e., principle of

repatriation and restoration, fresh start and

institutionalization as a measure of last resort. Bail should be

granted to every juvenile as a matter of right and refusal

should be done as an exception only where the grounds for

refusal of bail, as mentioned in Section 12 of the Act of

2015 are fulfilled. He urged that the law, as laid down in

Section 12 of the Act of 2015 is equally applicable in case of

a child, who has completed or is above the age of 16 years

and is alleged to have committed a ‘heinous offence’. He can

maintain his application under Section 12 of the Act of 2015

during the pendency of the preliminary assessment by the

Board under Section 15. He can also maintain his application

for bail under Section 12 of the Act of 2015 before the

Children’s Court after his case is transferred by the Board for

trial as an adult. According to him, in view of the express

provision prescribed under Section 8(2) of the Act of 2015,

the powers conferred on the Board under the Act of 2015

can also be exercised by the High Court and the Children’s

Court. On the basis of the aforesaid submissions, he

canvassed that the powers conferred on Board in the matter

of bail to a person, who is apparently a child alleged to be in

conflict with law are also available to the Children’s Court

and the High Court. He urged that the Act of 2015 does not

contemplate filing of an application for bail under the

provisions of the CrPC. According to him, Section 372 in

Chapter XXIX of the CrPC provides that no appeal shall lie

from any judgment or order of a criminal court except as

provided for by the Code or any other law for the time being

in force. As there is no provision in Chapter XXIX of the

CrPC enabling any person aggrieved by an order granting or

refusing bail by the Children’s Court, no appeal under the

provisions of the CrPC can be filed against any order passed

by the Children’s Court. He argued that any person,

aggrieved by any order including order granting or refusing

bail passed by the Children’s Court, can assail the order by

way of filing statutory appeal before the High Court under

Section 101(5) of the Act of 2015. He contended that a joint

reading of the Sections 19(1)(i) and 19(1)(ii) would make it

clear that the said provisions give option to the Children’s

Court to try the transferred child as an adult or not to deal

with the child as an adult. He submitted that the Children’s

Court is duty bound to decide as to whether or not there is

need for trial of the child in conflict with law, who has been

transferred before it, as an adult. It cannot dispense with its

mandatory duty in this regard.

16. Mr. Bachan Jee Ojha, learned counsel

appearing for the appellant in Cr. Appeal (SJ) No.2117 of

2019 adopting the submissions made by Mr. Thakur

submitted that once a preliminary assessment report has

been received from the Board under Section 15 of the Act of

2015, the Children’s Court is obliged to examine whether or

not there is any need for his trial as an adult in terms of

Section 19(1) of the Act of 2015 and pass appropriate

orders in this regard before proceeding ahead with his trial.

He has strenuously argued that a child in conflict with law

cannot be denied bail solely on the basis of the gravity of the

offence and the embargo in the matter of grant of bail

envisaged under the CrPC. According to him, the provisions

of the CrPC cannot be pressed into service either before the

Board or before the Children’s Court or before the High

Court while dealing with an application for bail on behalf of a

child in conflict with law either in course of inquiry or trial or

appeal.

17. Mr. Uday Kumar, learned counsel

appearing for appellant in Cr. Appeal (SJ) No. 1549 of 2019

has adopted the submissions made by Mr. Thakur, learned

counsel for the appellant in Cr. Appeal (SJ) No.1962 of

2019.

18. Per contra, Smt. Usha Kumari, learned

Additional Public Prosecutor for the State submitted that

seriousness of the offence would certainly be a ground for

rejecting bail in case of a child in conflict with law. She

contended that changes introduced in the Act of 2015 and

transfer of child in conflict with law in the age group of 16 to

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18 years to the Children’s Court; who have allegedly

committed ‘heinous offence’, have been made with a

purpose. They are to be tried in terms of the provisions of

the CrPC and, thus, in their case, while considering bail or

holding trial the provisions of the CrPC would be applicable.

She contended that the bail application on behalf of a child,

who is alleged to have committed a ‘heinous offence’ has to

be filed under the provisions of Section 437 before the

Board and under Section 439 of the CrPC before the

Children’s Court after transfer of his case for trial to the

Children’s Court.

19. Mr. Zeyaul Hoda, learned Additional Public

Prosecutor for the State submitted that once a preliminary

assessment report has been received from the Board under

Section 15 of the Act of 2015, the Children’s Court may

accept the report and proceed further for trial of the child as

an adult or take a decision as to whether there is need for

trial of the child as an adult or not as stipulated under

Sections 19(1)(i) and 19(1)(ii) of the Act of 2015. He

argued that it is not mandatory for the Children’s Court, on

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receipt of preliminary assessment report, to again decide as

to which of the two courses provided by Section 19(1)(i) and

19(1)(ii) is to be adopted.

20. While fully concurring with the views

expressed by the learned Additional Public Prosecutors, Mr.

Digvijay Kumar Ojha, learned advocate appearing for the

informant of Buxar (Town) P. S. Case No. 236 of 2018

submitted that considering the gravity of the problems and

issues involved with the children in the age group of 16 to

18 and, in the aftermath of Nirbhaya rape case, the

legislature introduced several changes in law. As per changes

brought in the Act of 2015, children between age group of

16 to 18 can now be tried as an adult for ‘heinous offences’.

Their bail application has to be differently dealt with and

based on the outcome of the trial, children falling between

the aforesaid age group have to be sentenced accordingly.

Thus, in their case, the principles mentioned in Section 3 of

the Act of 2015 would not be applicable. Their bail

application can be refused on the ground of gravity of the

offence and/or other grounds under the CrPC and their cases

Patna High Court CR. APP (SJ) No.2117 of 2019 dt.01-10-2019

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would not be covered by the law as laid down in Section 12

of the Act of 2015, he contended.

21. Having heard the parties, in order to find

out the answer to the questions to be determined in these

cases, it would be necessary to appreciate the Jurisprudence

of the Juvenile Justice System in India, which led to

enactment of the Act of 2015. It would also be of salience

to look into history, concept and philosophy of the Juvenile

Justice System chronologically.

22. Right from inception, the philosophy

behind the Juvenile Justice System is to reform, rehabilitate

and reintegrate a child in conflict with law and a child in need

of care and protection. The philosophy in dealing with

children committing offence is remarkably different from an

adult committing an offence.

23 The first doctrine in dealing with children

of both the categories is the doctrine of parens patriae. In

the juvenile justice legal system, parens patriae is a doctrine

that allows the State to step-in and serve as a guardian for

children, the mentally ill, the incompetent, the elderly or the

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disabled persons, who are unable to care for themselves. It

refers to the public policy power of the State to intervene

against an absurd or negligent parents, legal guardian or

informal caretaker and to act as parent of any child or

individual who is in need of protection. Normally, the natural

parents and family are expected to take care of their

children, but when they fail the State steps into shoes of the

parents and family to provide the same care and protection

as their own parents and families should have provided for

them.

24. With passage of time, the principle of

parens patriae shifted to the right approach, which respects

the constitutional and procedural rights of a juvenile. A child

in conflict with law should be treated in a manner consistent

with the promotion of the child’s sense of dignity and worth,

which reinforces the child’s respect for the human rights and

fundamental freedoms of others and, which takes into

account the child’s age and the desirability of promoting the

child’s reintegration and the child’s assuming a constructive

role in the society.

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25. In India, the first legislation enacted for

the children in distress is the Apprentices Act, 1850. It

applied to children above the age of ten, and under the age

of 18 years found to have committed petty offences and

vagabonds. Under this Act, the children in distress were to

be trained for trade and commerce. The Preamble of

Apprentices Act, 1850, which explains the intent behind the

enactment is set out hereinbelow:-

“For better enabling children, and

especially orphans and poor children

brought up in public charity, to learn

trades, crafts and employments, by

which, when they came to full age, may

gain a livelihood.”

26. In the above background, it is significant

to refer to the provisions of Indian Penal Code, 1860, i.e.,

Sections 82 and 83. Section 82 of the Indian Penal Code

deems children under 7 years of age incapable of forming an

intent to commit a crime. Section 83 of the Indian Penal

Code exempts child above 7 years of age and under 12, who

has not attained sufficient maturity of understanding to

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judge of the nature and consequences of his conduct on that

occasion from criminal responsibility.

27. Thereafter, Reformatory Schools Act,

1876 and Amendment Act, 1897 were enacted for

delinquent children, which empowered the government to

establish reformatory schools for juvenile delinquents. Under

this Act, provisions were made to keep juveniles in custody

in reformatory schools for a time period of 2 to 7 years, but

after attainment of the age of 18 years, they were not to be

kept in reformatory schools.

28. Another important legislation for children

was the Code of Criminal Procedure, 1898 (for short

‘Code’). Section 29(B) of the Code provided that any person

of 15 years of age, who had committed offence not

punishable with death or transportation for life, would be

tried by a District Magistrate or any Magistrate empowered

under the Reformatory Schools Act, 1897. Thus, the

juvenile delinquents were taken out of the jurisdiction of

ordinary courts in the matter of trial. Section 399 of the

Code provided for confinement in reformatories established

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by the Local Governments as a fit place for confinement

instead of being imprisoned in a criminal jail for offenders

under the age of 15 years and Section 562 of the Code

conferred power upon the Court to release on probation of

good conduct youthful offenders under 21 years of age

under certain conditions instead of sentencing them to

prison. These provisions along with the Reformatory Schools

Act,1897 made a significant change in the juvenile penal

philosophy from punishment to reform and rehabilitation.

29. Thereafter, the recommendations made by

the Indian Jail Committee (1919-1920) suggested that

juvenile prisoners are amenable to reformation and their

detention in prisons is undesirable, for, their simple mind

may be polluted permanently by the atmosphere of Jail life.

A child offender was mainly a product of unfavourable

environment. He was entitled to new opportunities to grow

and live in more congenial conditions. The Committee opined

that juveniles could be reformed by re-education and proper

treatment. It recommended that Borstal institutions should

be established for reformation of juveniles. It also

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recommended for constitution of juvenile courts.

30. Thereafter, under the Juvenile Justice

System in India, firstly the Juvenile Court was established

under Madras Children Act, 1920.

31. After independence of India in 1947, the

Parliament passed the first legislation on children, namely,

The Children’s Act, 1960. This was made applicable in

centrally administered union territories and the States having

no juvenile legislation were made free to adopt it. It was

passed to function as model legislation and for

implementation in union territories. This Act established

separate child welfare courts to handle cases relating to

neglected children. It also created the position of a Probation

Officer to advise and assist the neglected or delinquent

children. In addition, it established separate Children’s Court

for cases related to delinquent juveniles, thereby supporting

the judicial process for delinquent and neglected children.

32. It would be relevant to note here that prior

to the passing of The Children’s Act, 1960, there existed

different Children’s Act in different States. The most

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important aspect of the Children’s Act, 1960 was complete

prohibition of use of police station or jail under any

circumstances for children covered within its purview.

However, at this stage, Juvenile Justice System in India was

not uniform because each State had its own standards,

norms and practices.

33. The necessity of a uniform Children Act

across the Country gave rise to enactment of Juvenile

Justice Act, 1986 (for short ‘the Act of 1986’).

34. The Act of 1986 promoted the best

interest of the juveniles by incorporating the important

provisions of Indian Constitution. The Act of 1986 was

influenced by ‘United Nations Declaration of the Rights

of the Child, 1959’ and ‘United Nations Standard

Minimum Rules for the Administration of Juvenile

Justice (“The Beijing Rules”), 1985’. The detention of

juveniles in police lock-up or jail was abolished by the Act of

1986. It also recommended to establish Juvenile Homes for

the reception of neglected juveniles, Special Homes for

reception of delinquent juveniles and Observation Homes for

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the temporary reception of juveniles during pendency of the

inquiry and trial and Aftercare Homes for the purpose of

taking care of juveniles after discharge from Observation

Homes or Special Homes. The object of the Act of 1986 was

to protect juvenile from criminalization, penalization and

stigmatization. The Act of 1986 repealed various Children’s

Acts enacted in different States and provided a uniform

Juvenile Justice System in India. Boys under the age of 16

and girls under the age of 18 were defined as Juveniles.

35. Noticing various shortcoming in the Act of

1986 when India signed and ratified the ‘United Nations

Convention of Rights of Children’ in December, 1992,

the Act of 1986 was repealed and replaced by The

Juvenile Justice (Care and Protection of Children) Act,

2000 (for short ‘the Act of 2000’), which came into force

from 1st April 2001. The Act of 2000 defined the term

‘juvenile’ as a person who having not completed the age of

18 years. The statement of objects and reasons for the Act

of 2000 specified that it was enacted to bring the operation

of Juvenile Justice System in conformity with Convention

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of Rights of Children and other United Nations

Instruments signed by India. It incorporated the justice as

well as the right approach towards children. It dealt with

juveniles in conflict with law and children in need of care and

protection.

36. The Act of 2000 was amended in 2006.

The Amendment Act, 2006 brought several amendments

in the Principal Act. By the amendment, it was made clear

that crucial date for determination of age of a juvenile in

conflict with law would be the date of commission of offence.

Another important change was insertion of Section 7A, which

provided that a claim of juvenility may be raised before any

court and it shall be recognized at any stage, even after final

disposal of the case. The amended Act further clarified that

under any condition, a juvenile in conflict with law should not

be kept in a police lock-up or jail.

37. The Act of 2000 was again amended in

2011 to address gaps in its implementation and make the

law more child friendly.

38. The brutal gang rape and subsequent

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death of a girl in Delhi (Nirbhaya) on 16th December, 2012

gave rise to a debate that the provisions and system under

the Act of 2000 are ill equipped and needed modification to

tackle the children in the age group of 16 to 18. After a long

debate, the Juvenile Justice Bill was introduced in Lok Sabha

on 8th August, 2014. It was passed by Lok Sabha on 7th

May, 2015 and Rajya Sabha on 22nd December, 2015 and

received the presidential assent on 31st December, 2015 and

the Act of 2015 came into force on 15th January, 2016 with

its publication in the Gazette of India.

39. The Act of 2015 governs children alleged

and found to be in conflict with law and children in need of

care and protection.

40. It has been enacted to fulfill the objects of

the Constitution in clause (3) of Article 15, clauses (e) and

(f) of Article 39, Article 45 and Article 47, which confer

powers and imposes duties on the State to ensure that all

needs of children are met and their basic human rights are

fully protected.

41. It is worth setting out the statement of

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objects and reasons of the Act in full hereinbelow:-

“Statement of Objects and

Reasons.- Article 15 of the Constitution,

inter alia, confers upon the State powers to

make special provision for children. Articles

39(e) and (f), 45 and 47 further makes

the State responsible for ensuring that all

needs of children are met and their basic

human rights are protected.

2. The United Nations Convention

on the Rights of Children, ratified by India

on 11th December, 1992, requires the

State Parties to undertake all appropriate

measures in case of a child alleged as, or

accused of, violating any penal law,

including (a) treatment of the child in a

manner consistent with the promotion of

the child’s sense of dignity and worth (b)

reinforcing the child’s respect for the

human rights and fundamental freedoms of

others (c) taking into account the child’s

age and the desirability of promoting the

child’s reintegration and the child’s

assuming a constructive role in society.

3. The Juvenile Justice (Care and

Protection of Children) Act was enacted in

2000 to provide for the protection of

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children. The Act was amended twice in

2006 and 2011 to address gaps in its

implementation and make the law more

child-friendly. During the course of the

implementation of the Act, several issues

arose such as increasing incidents of abuse

of children in institutions, inadequate

facilities, quality of care and rehabilitation

measures in Homes, high pendency of

cases, delays in adoption due to faulty and

incomplete processing, lack of clarity

regarding roles, responsibilities and

accountability of institutions and,

inadequate provisions to counter offences

against children such as corporal

punishment, sale of children for adoption

purposes, etc. have highlighted the need to

review the existing law.

4. Further, increasing cases of

crimes committed by children in the age

group of 16-18 years in recent years

makes it evident that the current provisions

and system under the Juvenile Justice

(Care and Protection of Children) Act,

2000, are ill equipped to tackle child

offenders in this age group. The data

collected by the National Crime Records

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Bureau establishes that crimes by children

in the age group of 16-18 years have

increased especially in certain categories of

heinous offences.

5. Numerous changes are

required in the existing Juvenile Justice

(Care and Protection of Children) Act,

2000 to address the above mentioned

issues and therefore, it is proposed to

repeal existing Juvenile Justice (Care and

Protection of Children) Act, 2000 and reenact

a comprehensive legislation inter alia

to provide for general principles of care

and protection of children, procedures in

case of children in need of care and

protection and children in conflict with law,

rehabilitation and social re-integration

measures for such children, adoption of

orphan, abandoned and surrendered

children, and offences committed against

children. This legislation would thus ensure

proper care, protection, development,

treatment and social re-integration of

children in difficult circumstance by

adopting a child-friendly approach keeping

in view the best interest of the child in

mind.

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6. The notes on clauses explain in

detail the various provisions contained in

the Bill.

7. This Bill seeks to achieve the

above objectives.”

42. Para-1 of the statement of objects and

reasons is a key to unlock the legislative intent. It refers to

Articles 15, 39(e) and (f), 45 and 47 of the Constitution and

states that such articles confer upon the State the powers to

make special provision for children. It further makes the

State responsible for ensuring that all needs of children are

met and their basic human rights are protected.

43. Para-2 of the statement of objects and

reasons requires the State to undertake all appropriate

measures in case of a child alleged as, or accused of,

violating any penal law, including (a) treatment of the child

in a manner consistent with the promotion of the child’s

sense of dignity and worth; (b) reinforcing the child’s respect

for the human rights and fundamental freedoms of others;

and (c) taking into account the child’s age and the

desirability of promoting the child’s reintegration and the

child’s assuming a constructive role in society.

44. Para-4 of the statement of objects and

reasons is focused towards child in conflict with law in case

of ‘heinous offences’ in the age group of 16-18 years. It

states that existing provisions and system under the Act of

2000 are ill equipped to tackle child offenders in the age

group of 16-18 years as the crimes by children in the said

age group had increased especially in certain categories of

‘heinous offences’.

45. Para-5 of the statement of objects and

reasons while proposing to repeal the existing Act of 2000

and re-enact a comprehensive legislation inter alia to provide

for general principles of care and protection of children,

procedures in case of children in need of care and protection

and children in conflict with law, rehabilitation and social reintegration

measures for such children, re-assures the

legislative intent to ensure proper care, protection,

development, treatment and social re-integration of children

in difficult circumstances by adopting a child friendly

approach keeping in mind the best interest of the child.

46. The opening statements of the Act of

2015 contain the reasons and purposes of the Act. It is

worth setting out the opening statements of the Act of 2015

hereinbelow:-

“An Act to consolidate and amend

the law relating to children alleged and

found to be in conflict with law and children

in need of care and protection by catering

to their basic needs through proper care,

protection, development, treatment, social

re-integration, by adopting a child-friendly

approach in the adjudication and disposal

of matters in the best interest of children

and for their rehabilitation through

processes provided, and institutions and

bodies established, hereinunder and for

matters connected therewith or incidental

thereto.

WHEREAS, the provisions of the

Constitution confer powers and impose

duties, under clause (3) of article 15,

clauses (e) and (f) of article 39, article 45

and article 47, on the State to ensure that

all the needs of children are met and that

their basic human rights are fully

protected;

AND WHEREAS, the Government of

India has acceded on the 11th December,

1992 to the Convention on the Rights of

the Child, adopted by the General

Assembly of United Nations, which has

prescribed a set of standards to be adhered

to by all State parties in securing the best

interest of the child;

AND WHEREAS, it is expedient to

re-enact the Juvenile Justice (Care and

Protection of Children) Act, 2000 (56 of

2000) to make comprehensive provisions

for children alleged and found to be in

conflict with law and children in need of

care and protection, taking into

consideration the standards prescribed in

the Convention on the Rights of the Child,

the United Nations Standard Minimum

Rules for the Administration of Juvenile

Justice, 1985 (the Beijing Rules), the

United Nations Rules for the Protection of

Juveniles Deprived of their Liberty (1990),

the Hague Convention on Protection of

Children and Co-operation in Respect of

Inter-country Adoption (1993), and other

related international instruments.”

47. The purpose of referring to the opening

statements is to indicate that care, protection and treatment

by catering to children alleged and found to be in conflict

with law and children in need of care and protection, their

development, treatment, social re-integration, by adopting a

child friendly approach in adjudication and disposition of

matters in the best interest of children and for their ultimate

rehabilitation continues to be the basis for all purposes and

provisions under the Act.

48. The terms ‘care’, ‘protection’,

‘development’, ‘treatment’ and ‘best interests’ used in the

opening statements have not been defined in the Act of

2015. Hence, they shall have the meanings respectively

assigned to them in any other Act as prescribed in Section

2(61) of the Act of 2015 or in dictionary.

49. The term ‘rehabilitation’ has also not been

defined under the Act of 2015, but has been discussed under

Chapter VII in Section 39 (2) of the Act of 2015 wherein it

is provided that for children in conflict with law, the process

of rehabilitation and social integration shall be undertaken in

the observation homes, if the child is not released on bail or

in special homes or place of safety or fit facility or with a fit

person, if placed there, by the order of the Board.

50. The opening statements further recognize

that a duty is imposed upon the State under clause (3) of

Article 15, clauses (e) and (f) of Article 39, Article 45 and

Article 47 of the Constitution of India to ensure that all

needs of children are met and basic human rights are fully

protected.

51. Clause (3) of Article 15 of the Constitution

confers a discretion upon the State, withing the meaning of

Article 12 of the Constitution, to make special provisions for

women and children. It permits differential treatment in

favour of women and children, using the principle of

reasonable classification, a classification based on sex and

age.

52. Clause (e) of Article 39 of the Directive

Principles of State Policy under Constitution mandates that

State shall direct its policy towards securing that the tender

age of children is not abused.

53. Clause (f) of Article 39 of the Directive

Principles 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.

54. Article 45 of the Directive Principles of the

Constitution provides that the State shall endeavour to

provide provision for free and compulsory education for

children upto 6 age.

55. The opening statements further stipulate

that the Government of India has acceded on 11th

December, 1992 to the Convention on the Rights of the

Child adopted by the General Assembly of United Nations,

which has prescribed a set of standards to be adhered to by

all the State parties in securing the best interest of the

child.

56. The opening statements also stipulate that

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numerous changes were required in the existing Act, 2000 to

address issues relating to care and protection of children

and, therefore, the Act of 2000 has been repealed to reenact

a comprehensive legislation for children alleged and

found to be in conflict with law and children in need of care

and protection taking into consideration the standards

prescribed in the Convention on the Rights of the Child, the

United Nations Standard Minimum Rules for the

Administration of Juvenile Justice, 1985 (the Beijing Rules),

the United Nations Rules for the Protection of Juveniles

Deprived of their Liberty (1990), the Hague Convention on

Protection of Children and Co-operation in Respect of Intercountry

Adoption (1993), and other related international

instruments.

57. The basic objectives specified in the

opening statements of the Act of 2015, which may be

regarded as Preamble to it, are sought to be achieved

through all the provisions and by all the institutions and

bodies established under the Act.

58. The opening statements of any enactment

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is the basis to understand the legislative objectives behind

the Act. Every provision in the Act has to be interpreted in

the manner that advances such objectives. In case of any

ambiguity, the Preamble becomes the guiding light.

59. At this stage another important aspect to

be kept in mind is that the Act of 2015 was enacted as the

Parliament intended to tackle child offender committing

‘heinous offences’ in the age group of 16 to 18 years by

legislating new laws which repealed the Act of 2000.

60. Having discussed the history, concept and

philosophy behind the jurisprudence of the Juvenile Justice

System in India and analysed the opening statements of the

Act of 2015, it is now necessary to appreciate what

precisely, the Act of 2015 projects.

61. Some of the important provisions of the

Act of 2015 with which we are concerned, are set out

hereinbelow:-

“Section 1. Short title, extent,

commencement and application.-

(4) Notwithstanding anything

contained in any other law for the time

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being in force, the provisions of this Act

shall apply to all matters concerning

children in need of care and protection and

children in conflict with law, including —

(i) apprehension, detention,

prosecution, penalty or imprisonment,

rehabilitation and social re-integration of

children in conflict with law;

(ii) procedures and decisions or

orders relating to rehabilitation, adoption,

re-integration, and restoration of children

in need of care and protection.

Section 2. Definitions:- In this

Act, unless the context otherwise requires,-

(9) “best interest of child”

means the basis for any decision taken

regarding the child, to ensure fulfilment of

his basic rights and needs, identity, social

well-being and physical, emotional and

intellectual development;

(12) “child” means a person who

has not completed eighteen years of age;

(13) “child in conflict with law”

means a child who is alleged or found to

have committed an offence and who has

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not completed eighteen years of age on the

date of commission of such offence;

(15) “child friendly” means any

behaviour, conduct, practice, process,

attitude, environment or treatment that is

humane, considerate and in the best

interest of the child;

(20) “Children’s Court’’ means a

court established under the Commissions

for Protection of Child Rights Act, 2005 (4

of 2006) or a Special Court under the

Protection of Children from Sexual

Offences Act, 2012 (32 of 2012),

wherever existing and where such courts

have not been designated, the Court of

Sessions having jurisdiction to try offences

under the Act;

(33) “heinous offences” includes

the offences for which the minimum

punishment under the Indian Penal Code

(45 of 1860) or any other law for the time

being in force is imprisonment for seven

years or more;

(35) “juvenile” means a child

below the age of eighteen years;

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(45) “petty offences” includes the

offences for which the maximum

punishment under the Indian Penal Code

(45 of 1860) or any other law for the time

being in force is imprisonment up to three

years;

(54) “serious offences” includes

the offences for which the punishment

under the Indian Penal Code (45 of 1860)

or any other law for the time being in

force, is imprisonment between three to

seven years;

(61) all words and expressions used

but not defined in this Act and defined in

other Acts shall have the meanings

respectively assigned to them in those

Acts.

Section 3. General principles to

be followed in administration of Act.-

The Central Government, the State

Governments, the Board, and other

agencies, as the case may be, while

implementing the provisions of this Act

shall be guided by the following

fundamental principles, namely:–

(i) Principle of presumption of

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innocence: Any child shall be presumed to

be an innocent of any mala fide or criminal

intent up to the age of eighteen years.

(ii) Principle of dignity and

worth: All human beings shall be treated

with equal dignity and rights.

(iii) Principle of participation:

Every child shall have a right to be heard

and to participate in all processes and

decisions affecting his interest and the

child’s views shall be taken into

consideration with due regard to the age

and maturity of the child.

(iv) Principle of best interest:

All decisions regarding the child shall be

based on the primary consideration that

they are in the best interest of the child

and to help the child to develop full

potential.

(v) Principle of family

responsibility: The primary responsibility

of care, nurture and protection of the child

shall be that of the biological family or

adoptive or foster parents, as the case may

be.

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(vi) Principle of safety: All

measures shall be taken to ensure that the

child is safe and is not subjected to any

harm, abuse or maltreatment while in

contact with the care and protection

system, and thereafter.

(vii) Positive measures: All

resources are to be mobilised including

those of family and community, for

promoting the well-being, facilitating

development of identity and providing an

inclusive and enabling environment, to

reduce vulnerabilities of children and the

need for intervention under this Act.

(viii) Principle of nonstigmatising

semantics: Adversarial or

accusatory words are not to be used in the

processes pertaining to a child.

(ix) Principle of non-waiver of

rights: No waiver of any of the right of

the child is permissible or valid, whether

sought by the child or person acting on

behalf of the child, or a Board or a

Committee and any non-exercise of a

fundamental right shall not amount to

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waiver.

(x) Principle of equality and

non-discrimination: There shall be no

discrimination against a child on any

grounds including sex, caste, ethnicity,

place of birth, disability and equality of

access, opportunity and treatment shall be

provided to every child.

(xi) Principle of right to privacy

and confidentiality: Every child shall

have a right to protection of his privacy

and confidentiality, by all means and

throughout the judicial process.

(xii) Principle of

institutionalisation as a measure of

last resort: A child shall be placed in

institutional care as a step of last resort

after making a reasonable inquiry.

(xiii) Principle of repatriation

and restoration: Every child in the

juvenile justice system shall have the right

to be re-united with his family at the

earliest and to be restored to the same

socio-economic and cultural status that he

was in, before coming under the purview of

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this Act, unless such restoration and

repatriation is not in his best interest.

(xiv) Principle of fresh start: All

past records of any child under the Juvenile

Justice system should be erased except in

special circumstances.

(xv) Principle of diversion:

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.

(xvi) Principles of natural

justice: Basic procedural standards of

fairness shall be adhered to, including the

right to a fair hearing, rule against bias and

the right to review, by all persons or

bodies, acting in a judicial capacity under

this Act.

(emphasis added)

Section 4. Juvenile Justice

Board.- (1) Notwithstanding anything

contained in the Code of Criminal

Procedure, 1973 (2 of 1974), the State

Government shall, constitute for every

district, one or more Juvenile Justice

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Boards for exercising the powers and

discharging its functions relating to children

in conflict with law under this Act.

(2) A Board shall consist of a

Metropolitan Magistrate or a Judicial

Magistrate of First Class not being Chief

Metropolitan Magistrate or Chief Judicial

Magistrate (hereinafter referred to as

Principal Magistrate) with at least three

years experience and two social workers

selected in such manner as may be

prescribed, of whom at least one shall be a

woman, forming a Bench and every such

Bench shall have the powers conferred by

the Code of Criminal Procedure, 1973 (2

of 1974) on a Metropolitan Magistrate or,

as the case may be, a Judicial Magistrate

of First Class.

(3) No social worker shall be

appointed as a member of the Board

unless such person has been actively

involved in health, education, or welfare

activities pertaining to children for atleast

seven years or a practicing professional

with a degree in child psychology,

psychiatry, sociology or law.

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(4) No person shall be eligible for

selection as a member of the Board, if he-

(i) has any past record of

violation of human rights or child rights;

(ii) has been convicted of an

offence involving moral turpitude, and

such conviction has not been reversed or

has not been granted full pardon in

respect of such offence;

(iii) has been removed or

dismissed from service of the Central

Government or a State Government or an

undertaking or corporation owned or

controlled by the Central Government or a

State Government;

(iv) has ever indulged in child

abuse or employment of child labour or

any other violation of human rights or

immoral act.

(5) The State Government shall

ensure that induction training and

sensitisation of all members including

Principal Magistrate of the Board on care,

protection, rehabilitation, legal provisions

and justice for children, as may be

prescribed, is provided within a period of

sixty days from the date of appointment.

(6) The term of office of the

members of the Board and the manner in

which such member may resign shall be

such, as may be prescribed.

(7) The appointment of any

member of the Board, except the Principal

Magistrate, may be terminated after

holding an inquiry by the State

Government, if he–

(i) has been found guilty of

misuse of power vested under this Act; or

(ii) fails to attend the proceedings

of the Board consecutively for three

months without any valid reason; or

(iii) fails to attend less than threefourths

of the sittings in a year; or

(iv) becomes ineligible under subsection

(4) during his term as a member.

Section 5. Placement of person,

who cease to be a child during process

of inquiry.-Where an inquiry has been

initiated in respect of any child under this

Act, and during the course of such inquiry,

the child completes the age of eighteen

years, then, notwithstanding anything

contained in this Act or in any other law

for the time being in force, the inquiry may

be continued by the Board and orders may

be passed in respect of such person as if

such person had continued to be a child.

Section 6. Placement of persons,

who committed an offence, when

person was below the age of eighteen

years.-(1) Any person, who has completed

eighteen years of age, and is apprehended

for committing an offence when he was

below the age of eighteen years, then,

such person shall, subject to the provisions

of this section, be treated as a child during

the process of inquiry.

(2) The person referred to in subsection

(1), if not released on bail by the

Board shall be placed in a place of safety

during the process of inquiry.

(3) The person referred to in subsection

(1) shall be treated as per the

procedure specified under the provisions of

this Act.

Section 7. Procedure in relation

to Board.- (1) The Board shall meet at

such times and shall observe such rules in

regard to the transaction of business at its

meetings, as may be prescribed and shall

ensure that all procedures are child friendly

and that the venue is not intimidating to

the child and does not resemble as regular

courts.

(2) A child in conflict with law

may be produced before an individual

member of the Board, when the Board is

not in sitting.

(3) A Board may act

notwithstanding the absence of any

member of the Board, and no order passed

by the Board shall be invalid by the reason

only of the absence of any member during

any stage of proceedings:

Provided that there shall be atleast

two members including the Principal

Magistrate present at the time of final

disposal of the case or in making an order

under sub-section (3) of section 18.

(4) In the event of any difference

of opinion among the members of the

Board in the interim or final disposal, the

opinion of the majority shall prevail, but

where there is no such majority, the

opinion of the Principal Magistrate, shall

prevail.

Section 8. Powers, functions and

responsibilities of the Board.-(1)

Notwithstanding anything contained in any

other law for the time being in force but

save as otherwise expressly provided in

this Act, the Board constituted for any

district shall have the power to deal

exclusively with all the proceedings under

this Act, relating to children in conflict with

law, in the area of jurisdiction of such

Board.

(2) The powers conferred on the

Board by or under this Act may also be

exercised by the High Court and the

Children’s Court, when the proceedings

come before them under section 19 or in

appeal, revision or otherwise.

(3) The functions and

responsibilities of the Board shall include–

(a) ensuring the informed

participation of the child and the parent or

guardian, in every step of the process;

(b) ensuring that the child’s rights

are protected throughout the process of

apprehending the child, inquiry, aftercare

and rehabilitation;

(c) ensuring availability of legal

aid for the child through the legal services

institutions;

(d) wherever necessary the Board

shall provide an interpreter or translator,

having such qualifications, experience, and

on payment of such fees as may be

prescribed, to the child if he fails to

understand the language used in the

proceedings;

(e) directing the Probation Officer,

or in case a Probation Officer is not

available to the Child Welfare Officer or a

social worker, to undertake a social

investigation into the case and submit a

social investigation report within a period

of fifteen days from the date of first

production before the Board to ascertain

the circumstances in which the alleged

offence was committed;

(f) adjudicate and dispose of

cases of children in conflict with law in

accordance with the process of inquiry

specified in section 14;

(g) transferring to the Committee,

matters concerning the child alleged to be

in conflict with law, stated to be in need of

care and protection at any stage, thereby

recognising that a child in conflict with law

can also be a child in need of care

simultaneously and there is a need for the

Committee and the Board to be both

involved;

(h) disposing of the matter and

passing a final order that includes an

individual care plan for the child’s

rehabilitation, including follow up by the

Probation Officer or the District Child

Protection Unit or a member of a nongovernmental

organisation, as may be

required;

(i) conducting inquiry for declaring

fit persons regarding care of children in

conflict with law;

(j) conducting at least one

inspection visit every month of residential

facilities for children in conflict with law and

recommend action for improvement in

quality of services to the District Child

Protection Unit and the State Government;

(k) order the police for registration

of first information report for offences

committed against any child in conflict with

law, under this Act or any other law for the

time being in force, on a complaint made in

this regard;

(l) order the police for registration

of first information report for offences

committed against any child in need of

care and protection, under this Act or any

other law for the time being in force, on a

written complaint by a Committee in this

regard;

(m) conducting regular inspection

of jails meant for adults to check if any

child is lodged in such jails and take

immediate measures for transfer of such a

child to the observation home; and

(n) any other function as may be

prescribed.

Section 9. Procedure to be

followed by a Magistrate who has not

been empowered under this Act.-(1)

When a Magistrate, not empowered to

exercise the powers of the Board under

this Act is of the opinion that the person

alleged to have committed the offence and

brought before him is a child, he shall,

without any delay, record such opinion and

forward the child immediately along with

the record of such proceedings to the

Board having jurisdiction.

(2) In case a person alleged to

have committed an offence claims before a

court other than a Board, that the person

is a child or was a child on the date of

commission of the offence, or if the court

itself is of the opinion that the person was

a child on the date of commission of the

offence, the said court shall make an

inquiry, take such evidence as may be

necessary (but not an affidavit) to

determine the age of such person, and

shall record a finding on the matter,

stating the age of the person as nearly as

may be:

Provided that such a claim may be

raised before any court and it shall be

recognized at any stage, even after final

disposal of the case, and such a claim shall

be determined in accordance with the

provisions contained in this Act and the

rules made thereunder even if the person

has ceased to be a child on or before the

date of commencement of this Act.

(3) If the court finds that a person

has committed an offence and was a child

on the date of commission of such offence,

it shall forward the child to the Board for

passing appropriate orders and the

sentence, if any, passed by the court shall

be deemed to have no effect.

(4) In case a person under this

section is required to be kept in protective

custody, while the person’s claim of being

a child is being inquired into, such person

may be placed, in the intervening period in

a place of safety.

Section 10. Apprehension of

child alleged to be in conflict with

law.- (1) As soon as a child alleged to be

in conflict with law is apprehended by the

police, such child shall be placed under the

charge of the special juvenile police unit or

the designated child welfare police officer,

who shall produce the child before the

Board without any loss of time but within a

period of twenty-four hours of

apprehending the child excluding the time

necessary for the journey, from the place

where such child was apprehended:

Provided that in no case, a child

alleged to be in conflict with law shall be

placed in a police lockup or lodged in a jail.

(2) The State Government shall

make rules consistent with this Act,—

(i) to provide for persons through

whom (including registered voluntary or

nongovernmental organisations) any child

alleged to be in conflict with law may be

produced before the Board;

(ii) to provide for the manner in

which the child alleged to be in conflict

with law may be sent to an observation

home or place of safety, as the case may

be.

Section 11. Role of person in

whose charge child in conflict with law

is placed.- Any person in whose charge a

child in conflict with law is placed, shall

while the order is in force, have

responsibility of the said child, as if the

said person was the child’s parent and

responsible for the child’s maintenance:

Provided that the child shall

continue in such person’s charge for the

period stated by the Board,

notwithstanding that the said child is

claimed by the parents or any other

person except when the Board is of the

opinion that the parent or any other

person are fit to exercise charge over such

child.

Section 12. Bail to a person who

is apparently a child alleged to be in

conflict with law.- (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 by the

police or appears or brought before a

Board, such person shall, notwithstanding

anything contained in the Code of Criminal

Procedure, 1973 (2 of 1974) or in any

other law for the time being in force, be

released on bail with or without surety or

placed under the supervision of a probation

officer or under the care of any fit person:

Provided that such person shall not

be so released if there appears reasonable

grounds for believing that the release is

likely to bring that person into association

with any known criminal or expose the said

person to moral, physical or psychological

danger or the person’s release would

defeat the ends of justice, and the Board

shall record the reasons for denying the

bail and circumstances that led to such a

decision.

(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 such manner as may

be prescribed until the person can be

brought before a Board.

(3) When such person is not

released on bail under sub-section (1) by

the Board, it shall 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 the order.

(4) When a child in conflict with

law is unable to fulfill the conditions of bail

order within seven days of the bail order,

such child shall be produced before the

Board for modification of the conditions of

bail.

Section 13. Information to

parents, guardian or probation officer.-

(1) Where a child alleged to be in conflict

with law is apprehended, the officer

designated as Child Welfare Police Officer

of the police station, or the special juvenile

police unit to which such child is brought,

shall, as soon as possible after

apprehending the child, inform —

(i) the parent or guardian of such

child, if they can be found, and direct them

to be present at the Board before which

the child is produced; and

(ii) the probation officer, or if no

probation officer is available, a Child

Welfare Officer, for preparation and

submission within two weeks to the Board,

a social investigation report containing

information regarding the antecedents and

family background of the child and other

material circumstances likely to be of

assistance to the Board for making the

inquiry.

2. Where a child is released on

bail, the probation officer or the Child

Welfare Officer shall be informed by the

Board.

Section 14. Inquiry by Board

regarding child in conflict with law.-(1)

Where a child alleged to be in conflict with

law is produced before Board, the Board

shall hold an inquiry in accordance with the

provisions of this Act and may pass such

orders in relation to such child as it deems

fit under sections 17 and 18 of this Act.

(2) The inquiry under this section

shall be completed within a period of four

months from the date of first production of

the child before the Board, unless the

period is extended, for a maximum period

of two more months by the Board, having

regard to the circumstances of the case

and after recording the reasons in writing

for such extension.

(3) A preliminary assessment in

case of heinous offences under section 15

shall be disposed of by the Board within a

period of three months from the date of

first production of the child before the

Board.

(4) If inquiry by the Board under

sub-section (2) for petty offences remains

inconclusive even after the extended

period, the proceedings shall stand

terminated:

Provided that for serious or heinous

offences, in case the Board requires further

extension of time for completion of inquiry,

the same shall be granted by the Chief

Judicial Magistrate or, as the case may be,

the Chief Metropolitan Magistrate, for

reasons to be recorded in writing.

(5) The Board shall take the

following steps to ensure fair and speedy

inquiry, namely:—

(a) at the time of initiating the

inquiry, the Board shall satisfy itself that

the child in conflict with law has not been

subjected to any ill-treatment by the police

or by any other person, including a lawyer

or probation officer and take corrective

steps in case of such ill-treatment;

(b) in all cases under the Act, the

proceedings shall be conducted in simple

manner as possible and care shall be taken

to ensure that the child, against whom the

proceedings have been instituted, is given

child-friendly atmosphere during the

proceedings;

(c) every child brought before the

Board shall be given the opportunity of

being heard and participate in the inquiry;

(d) cases of petty offences, shall

be disposed of by the Board through

summary proceedings, as per the

procedure prescribed under the Code of

Criminal Procedure, 1973 (2 of 1974);

(e) inquiry of serious offences

shall be disposed of by the Board, by

following the procedure, for trial in

summons cases under the Code of Criminal

Procedure, 1973 (2 of 1974);

(f) inquiry of heinous offences,—

(i) for child below the age of

sixteen years as on the date of

commission of an offence shall

be disposed of by the Board

under clause (e);

(ii) for child above the age

of sixteen years as on the date

of commission of an offence

shall be dealt with in the

manner prescribed under

section 15.

Section 15. Preliminary

assessment into heinous offences by

Board.-(1) In case of a heinous offence

alleged to have been committed by a child,

who has completed or is above the age of

sixteen years, the Board shall conduct a

preliminary assessment with regard to his

mental and physical capacity to commit

such offence, ability to understand the

consequences of the offence and the

circumstances in which he allegedly

committed the offence, and may pass an

order in accordance with the provisions of

sub-section (3) of section 18:

Provided that for such an

assessment, the Board may take the

assistance of experienced psychologists or

psycho-social workers or other experts.

Explanation.—For the purposes of

this section, it is clarified that preliminary

assessment is not a trial, but is to assess

the capacity of such child to commit and

understand the consequences of the

alleged offence.

(2) Where the Board is satisfied

on preliminary assessment that the matter

should be disposed of by the Board, then

the Board shall follow the procedure, as far

as may be, for trial in summons case under

the Code of Criminal Procedure, 1973 (2

of 1974):

Provided that the order of the Board

to dispose of the matter shall be

appealable under sub-section (2) of section

101.

Provided further that the assessment

under this section shall be completed

within the period specified in section 14.

Section 18. Orders regarding

child found to be in conflict with law.-

(1) Where a Board is satisfied on inquiry

that a child irrespective of age has

committed a petty offence, or a serious

offence, or a child below the age of sixteen

years has committed a heinous offence,

then, notwithstanding anything contrary

contained in any other law for the time

being in force, and based on the nature of

offence, specific need for supervision or

intervention, circumstances as brought out

in the social investigation report and past

conduct of the child, the Board may, if it

so thinks fit,—

(a) allow the child to go home

after advice or admonition by following

appropriate inquiry and counselling to such

child and to his parents or the guardian;

(b) direct the child to participate

in group counselling and similar activities;

(c) order the child to perform

community service under the supervision of

an organisation or institution, or a specified

person, persons or group of persons

identified by the Board;

(d) order the child or parents or

the guardian of the child to pay fine:

Provided that, in case the child is

working, it may be ensured that the

provisions of any labour law for the time

being in force are not violated;

(e) direct the child to be released

on probation of good conduct and placed

under the care of any parent, guardian or

fit person, on such parent, guardian or fit

person executing a bond, with or without

surety, as the Board may require, for the

good behaviour and child’s well-being for

any period not exceeding three years;

(f) direct the child to be released

on probation of good conduct and placed

under the care and supervision of any fit

facility for ensuring the good behaviour

and child’s well-being for any period not

exceeding three years;

(g) direct the child to be sent to a

special home, for such period, not

exceeding three years, as it thinks fit, for

providing reformative services including

education, skill development, counselling,

behaviour modification therapy, and

psychiatric support during the period of

stay in the special home:

Provided that if the conduct and

behaviour of the child has been such that,

it would not be in the child’s interest, or in

the interest of other children housed in a

special home, the Board may send such

child to the place of safety.

(2) If an order is passed under

clauses (a) to (g) of sub-section (1), the

Board may, in addition pass orders to—

(i) attend school; or

(ii) attend a vocational training

centre; or

(iii) attend a therapeutic centre; or

(iv) prohibit the child from visiting,

frequenting or appearing at a specified

place; or

(v) undergo a de-addiction programme.

(3) Where the Board after

preliminary assessment under section 15

pass an order that there is a need for trial

of the said child as an adult, then the

Board may order transfer of the trial of the

case to the Children’s Court having

jurisdiction to try such offences.

Section 19. Powers of

Children’s Court-(1) After the receipt

of preliminary assessment from the Board

under section 15, the Children´s Court

may decide that—

(i) there is a need for trial of the

child as an adult as per the provisions of

the Code of Criminal Procedure, 1973 (2

of 1974) and pass appropriate orders after

trial subject to the provisions of this

section and section 21, considering the

special needs of the child, the tenets of

fair trial and maintaining a child friendly

atmosphere;

(ii) there is no need for trial of

the child as an adult and may conduct an

inquiry as a Board and pass appropriate

orders in accordance with the provisions of

section 18.

(2) The Children’s Court shall

ensure that the final order, with regard to a

child in conflict with law, shall include an

individual care plan for the rehabilitation of

child, including follow up by the probation

officer or the District Child Protection Unit

or a social worker.

(3) The Children’s Court shall

ensure that the child who is found to be in

conflict with law is sent to a place of

safety till he attains the age of twenty-one

years and thereafter, the person shall be

transferred to a jail:

Provided that the reformative

services including educational services,

skill development, alternative therapy such

as counselling, behaviour modification

therapy, and psychiatric support shall be

provided to the child during the period of

his stay in the place of safety.

(4) The Children’s Court shall

ensure that there is a periodic follow up

report every year by the probation officer

or the District Child Protection Unit or a

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social worker, as required, to evaluate the

progress of the child in the place of safety

and to ensure that there is no ill-treatment

to the child in any form.

(5) The reports under sub-section

(4) shall be forwarded to the Children’s

Court for record and follow up, as may be

required.

Section 20. Child attained age of

twenty-one years and yet to complete

prescribed term of stay in place of

safety.- (1) When the child in conflict

with the law attains the age of twenty-one

years and is yet to complete the term of

stay, the Children´s Court shall provide for

a follow up by the probation officer or the

District Child Protection Unit or a social

worker or by itself, as required, to

evaluate if such child has undergone

reformative changes and if the child can

be a contributing member of the society

and for this purpose the progress records

of the child under sub-section (4) of

section 19, along with evaluation of

relevant experts are to be taken into

consideration.

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(2) After the completion of the

procedure specified under sub-section (1),

the Children’s Court may—

(i) decide to release the child on

such conditions as it deems fit which

includes appointment of a monitoring

authority for the remainder of the

prescribed term of stay;

(ii) decide that the child shall

complete the remainder of his term in a

jail:

Provided that each State

Government shall maintain a list of

monitoring authorities and monitoring

procedures as may be prescribed.

Sections 21. Order that may not

be passed against a child in conflict

with law.-No child in conflict with law

shall be sentenced to death or for life

imprisonment without the possibility of

release, for any such offence, either under

the provisions of this Act or under the

provisions of the Indian Penal Code (45 of

1860) or any other law for the time being

in force.

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Section 22. Proceeding under

Chapter VIII of the Code of Criminal

Procedure not to apply against child.-

Notwithstanding anything to the contrary

contained in the Code of Criminal

Procedure, 1973 (2 of 1974), or any

preventive detention law for the time being

in force, no proceeding shall be instituted

and no order shall be passed against any

child under Chapter VIII of the said Code.

Section 23. No joint proceedings

of child in conflict with law and person

not a child. (1) Notwithstanding anything

contained in section 223 of the Code of

Criminal Procedure, 1973 (2 of 1974) or in

any other law for the time being in force,

there shall be no joint proceedings of a

child alleged to be in conflict with law, with

a person who is not a child.

(2) If during the inquiry by the

Board or by the Children’s Court, the

person alleged to be in conflict with law is

found that he is not a child, such person

shall not be tried along with a child.

Section 101. Appeals.- (1)

Subject to the provisions of this Act, any

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person aggrieved by an order made by the

Committee or the Board under this Act

may, within thirty days from the date of

such order, prefer an appeal to the

Children’s Court, except for decisions by

the Committee related to Foster Care and

Sponsorship After Care for which the

appeal shall lie with the District

Magistrate:

Provided that the Court of Sessions,

or the District Magistrate, as the case may

be, may entertain the appeal after the

expiry of the said period of thirty days, if

it is satisfied that the appellant was

prevented by sufficient cause from filing

the appeal in time and such appeal shall

be decided within a period of thirty days.

(2) An appeal shall lie against an

order of the Board passed after making the

preliminary assessment into a heinous

offence under section 15 of the Act, before

the Court of Sessions and the Court may,

while deciding the appeal, take the

assistance of experienced psychologists

and medical specialists other than those

whose assistance has been obtained by the

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Board in passing the order under the said

section.

(3) No appeal shall lie from,—

(a) any order of acquittal

made by the Board in respect of a child

alleged to have committed an offence other

than the heinous offence by a child who

has completed or is above the age of

sixteen years; or

(b) any order made by a

Committee in respect of finding that a

person is not a child in need of care and

protection.

(4) No second appeal shall lie from

any order of the Court of Session, passed

in appeal under this section.

(5) Any person aggrieved by an

order of the Children’s Court may file

an appeal before the High Court in

accordance with the procedure

specified in the Code of Criminal

Procedure, 1973 (2 of 1974).

(emphasis added)

Section 110. Power to make

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rules.-(1) The State Government shall,

by notification in the Official Gazette, make

rules to carry out the purposes of this Act:

Provided that the Central

Government may, frame model rules in

respect of all or any of the matters with

respect to which the State Government is

required to make rules and where any such

model rules have been framed in respect

of any such matter, they shall apply to the

State mutatis mutandis until the rules in

respect of that matter are made by the

State Government and while making any

such rules, they conform to such model

rules.”

62. It would be relevant to mention here that

in exercise of powers conferred by the provisions prescribed

under Section 110(1) of the Act of 2015, the Central

Government has framed Juvenile Justice (Care and

Protection of Children) Model Rules, 2016 (for short ‘Rules’)

to carry out the purposes of the Act of 2015.

63. Rule 13 of the Rules being of importance

in the instant case is set out hereinbelow :-

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“Rule 13. Procedure in relation

to Children’s Court and Monitoring

Authorities.- (1) Upon receipt of

preliminary assessment from the Board

the Children’s Court may decide whether

there is need for trial of the child as an

adult or as a child and pass appropriate

orders.

(2) Where an appeal has been filed

under sub-section (1) of section 101 of the

Act against the order of the Board

declaring the age of the child, the

Children’s Court shall first decide the said

appeal.

(3) Where an appeal has been filed

under sub-section (2) of section 101 of

the Act against the finding of the

preliminary assessment done by the

Board, the Children’s Court shall first

decide the appeal.

(4) Where the appeal under subsection

(2) of section 101 of the Act is

disposed of by the Children’s Court on a

finding that there is no need for trial of the

child as an adult, it shall dispose of the

same as per section 19 of the Act and

these rules.

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(5) Where the appeal under subsection

(2) of section 101 of the Act is

disposed of by the Children’s Court on a

finding that the child should be tried as an

adult the Children’s Court shall call for the

file of the case from the Board and dispose

of the matter as per the provisions of the

Act and these rules.

(6) The Children’s Court shall record

its reasons while arriving at a conclusion

whether the child is to be treated as an

adult or as a child.

(7) Where the Children’s Court

decides that there is no need for trial of

the child as an adult, and that it shall

decide the matter itself:-

(i) It may conduct the inquiry as if it

were functioning as a Board and dispose of

the matter in accordance with the

provisions of the Act and these rules.

(ii) The Children’s Court, while

conducting the inquiry shall follow the

procedure for trial in summons case under

the Code of Criminal Procedure, 1973.

(iii) The proceedings shall be

conducted in camera and in a child friendly

atmosphere, and there shall be no joint

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trial of a child alleged to be in conflict with

law, with a person who is not a child.

(iv) When witnesses are produced

for examination the Children’s Court shall

ensure that the inquiry is not conducted in

the spirit of strict adversarial proceedings

and it shall use the powers conferred by

section 165 of the Indian Evidence Act,

1872 (1 of 1872).

(v) While examining a child in

conflict with law and recording his

statement, the Children’s Court shall

address the child in a child-friendly manner

in order to put the child at ease and to

encourage him to state the facts and

circumstances without any fear, not only in

respect of the offence which is alleged

against the child, but also in respect of the

home and social surroundings and the

influence to which the child might have

been subjected.

(vi) The dispositional order passed

by the Children’s Court shall necessarily

include an individual care plan in Form 7

for the child in conflict with law concerned,

prepared by a Probation Officer or Child

Welfare Officer or recognized voluntary

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organisation on the basis of interaction

with the child and his family, where

possible.

(vii) The Children’s Court, in such

cases, may pass any orders as provided in

sub-sections (1) and (2) of section 18 of

the Act.

(8) Where the Children’s Court

decides that there is a need for trial of

the child as an adult:-

(i) It shall follow the procedure

prescribed by the Code of Criminal

Procedure, 1973 of trial by sessions

and maintaining a child friendly

atmosphere.

(ii) The final order passed by the

Children’s Court shall necessarily

include an individual care plan for the

child as per Form 7 prepared by a

Probation Officer or Child Welfare

Officer or recognized voluntary

organisation on the basis of

interaction with the child and his

family, where possible.

(iii) Where the child has been

found to be involved in the offence,

the child may be sent to a place of

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safety till the age of twenty-one

years.

(iv) While the child remains at

the place of safety, there shall be

yearly review by the Probation Officer

or the District Child Protection Unit or

a social worker in Form 13 to evaluate

the progress of the child and the

reports shall be forwarded to the

Children’s Court.

(v) The Children’s Court may also

direct the child to be produced before

it periodically and at least once every

three months for the purpose of

assessing the progress made by the

child and the facilities provided by the

institution for the implementation of

the individual care plan.

(vi) When the child attains the

age of twenty-one years and is yet to

complete the term of stay, the

Children’s Court shall:-

(a) interact with the child in

order to evaluate whether the child

has undergone reformative changes

and if the child can be a contributing

member of the society.

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(b) take into account the

periodic reports of the progress of the

child, prepared by the Probation

Officer or the District Child Protection

Unit or a social worker, if needed and

further direct that institutional

mechanism if inadequate be

strengthened.

(c) After making the evaluation,

the Children’s Court may decide to:-

(ca) release the child forthwith;

(cb) release the child on

execution of a personal bond with or

without sureties for good behaviour;

(cc) release the child and issue

directions regarding education,

vocational training, apprenticeship,

employment, counselling and other

therapeutic interventions with a view

to promoting adaptive and positive

behaviour etc.;

(cd) release the child and

appoint a monitoring authority for the

remainder of the prescribed term of

stay. The monitoring authority, where

appointed shall maintain a

Rehabilitation Card for the child in

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Form 14.

(vii) For the purpose of sub-rule

(vi) (c) (cd) of this rule:-

(a) A Probation Officer or Case

Worker or Child Welfare Officer or a fit

person may be appointed as a

monitoring authority.

(b) The District Child Protection

Unit shall maintain a list of such

persons who can be engaged as

monitoring authorities which shall be

sent to the Children’s Court along with

bi-annual updates.

(c) The child shall for the first

quarter after release, meet with the

monitoring authority on a fortnightly

basis or at such intervals as may be

directed by the Children’s Court. The

monitoring authority shall fix a time

and venue for such meetings in

consultation with the child. The

monitoring authority will forward its

observations on the progress of the

child on a monthly basis to the

Children’s Court.

(d) At the end of the first quarter

the monitoring authority shall make

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recommendations regarding the

further follow up procedure required

for the child.

(e) Where the child, after release

is found to be indulging in criminal

activities or associating with people

with criminal antecedents, he shall be

brought before the Children’s Court

for further orders.

(f) If it is found that the child

no longer requires to be monitored,

the monitoring authority shall place

the detailed report with

recommendations before the

Children’s Court which shall issue

further directions either terminating

the monitoring or for its continuation.

(g) After the first quarter, the

child shall meet the monitoring

authority at such intervals as may be

directed by the Children’s Court based

on the recommendations made by the

monitoring authority at the end of the

first quarter and the monitoring

authority shall forward its report to

the Children’s Court which shall review

the same every quarter.”

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(emphasis added)

64. We have noticed hereinabove that the Act

of 2015 classifies offences in three categories. They are:

‘petty offences’, ‘serious offences’ and ‘heinous offences’.

65. ‘Petty offences’ are those offences for

which the maximum punishment under the Indian Penal

Code or any other law for the time being in force is

imprisonment upto 3 years. ‘Serious offences’ are those

offences for which the maximum punishment under the

Indian Penal Code or any other law for the time being in

force is imprisonment between 3 to 7 years and ‘heinous

offences’ are those offences for which the minimum

punishment under the Indian Penal Code or any other law

for the time being in force is imprisonment for 7 years or

more.

66. The legislature has consciously classified

the offences under different categories in order to achieve

the object of the Act of 2015.

67. The Act of 2015 treats all the children

below 18 years equally except in the age group of 16 to 18

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years, who are alleged to have committed ‘heinous offences’.

68. Section 3 of the Act of 2015 enumerates

the general principles to be followed in administration of the

Act. It regulates the conduct and behaviour of all persons

functioning under the Act. It states that the Central

Government, the State Governments, the Board and other

agencies, as the case may be, while implementing the

provisions of the Act shall be guided by the fundamental

principles enumerated in clauses (i) to (xvi).

69. Section 4 of the Act of 2015 provides for

constitution of one or more Board by the State Government

for every district for exercising the powers and discharging

the duties conferred or imposed on them in relation to

children in conflict with law under the Act. It also provides

for the composition of the Board, which shall consist of a

Metropolitan or a Judicial Magistrate of the first class (not

being Chief Metropolitan Magistrate or Chief Judicial

Magistrate) with at least three years of experience and two

social workers from two different reputed non-governmental

organizations.

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70. Section 5 of the Act of 2015 clarifies that

when an inquiry has been initiated in respect of any child

under this Act, and during the course of inquiry, if child

completes the age of eighteen years, then, the inquiry may

be continued by the Board and orders may be passed in

respect of that person as if such person had continued to be

a child.

71. Section 6 of the Act of 2015 provides that

if a person, who has completed 18 years of age but is below

21 years, is apprehended for committing an offence when he

was below the age of 18 years, then the person shall be

treated as a child during the process of inquiry. It further

states that if the person is not released on bail by the Board

then the person shall be placed in a Place of Safety during

the process of inquiry. If the Board after inquiry comes to

the conclusion that the person has committed any offence,

then the person shall be placed in a Place of Safety till he

completes his term.

72. Section 7 of the Act of 2015 provides that

the Board shall ensure that all procedures are child friendly

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and that the venue is not intimidating to the child and does

not resemble regular Courts. Further, the times at which the

Board shall meet and the rules that shall be observed in

regard to the transaction of business at its meetings, shall be

prescribed. It further states that when the Board is not

sitting, a child in conflict with law may be produced before

an individual member of the Board. It also states that a

Board may act even in the absence of any member of the

Board and no order passed by the Board shall be invalid in

the absence of any member during any stage of proceedings.

Section 5 of the Act of 2015 clarifies that at the time of final

disposal of the case or in making any order under Section

18(3) of the Act of 2015 at least two members including the

Principal Magistrate shall be present and in the event of any

difference of opinion among the members of the Board in the

interim or final disposal, the opinion of the majority shall

prevail. In case there is no majority then the opinion of the

Principal Magistrate, shall prevail.

73. Section 8 of the Act of 2015 provides the

functions and responsibilities of the Board. It states that the

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Board constituted for any district shall have the power to

deal exclusively with all proceedings under this Act relating

to children in conflict with law in the area of jurisdiction of

such Board.

74. Section 8(2) of the Act of 2015,

which is noteworthy for us provides that the powers

conferred on the Board under the Act may also be

exercised by the High Court and the Children’s Court,

when the proceedings come before them as provided

under Section 19 of the Act of 2015 or in appeal,

revision or otherwise.

75. Section 8(3) of the Act of 2015 specifies

the functions and responsibilities of the Board, but those are

only illustrative and not exhaustive and any additional

functions may be prescribed in the rules to be framed under

the Act.

76. On a careful consideration of the

provisions prescribed under Section 8 of the Act of 2015,

specially its sub-section (2), the answer to the third question

“Whether the powers conferred on Board in the matter

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of bail to a person, who is apparently a child alleged to

be in conflict with law are also available to the

Children’s Court” becomes abundantly clear.

77. In view of clear, unambiguous and

specific stipulation in Section 8(2) of the Act of 2015,

which provides that the powers conferred on the

Board under the Act may also be exercised by the High

Court and the Children’s Court, we unhesitatingly

conclude and hold that in the matter of grant of bail

to a person, who is apparently a child and is alleged to

have committed a bailable or non-bailable offence, the

powers conferred on the Board under the Act of 2015

are also available to the Children’s Court.

78. The third question for determination is

answered, accordingly.

79. Section 9 of the Act of 2015 provides that

when a Magistrate, who is not empowered to exercise the

powers of Board under this Act is of the opinion that the

person alleged to have committed the offence and brought

before him is a child then in such a case the Magistrate shall,

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without any delay, record his opinion and forward the child

immediately, and send record of the proceeding, to the

Board having jurisdiction over the proceeding. In case, a

person alleged to have committed an offence claims that he

was a child on the date of commission of the offence before

a court other than a Board, or is the court itself is of the

opinion that the person was a child on the date of

commission of the offence, then the court shall make an

inquiry, take such evidence as may be necessary (but not an

affidavit) to determine the age of the person, and shall

record a finding on the matter, stating the age of the person

as nearly as may be. This section further clarifies that such a

claim can be raised before any court and it shall be

recognized at any stage, even after final disposal of the case.

Such a claim shall be determined in terms of the provisions

contained in the Act and the rules made under the Act even

if the person is ceased to be a child on or before the date of

commencement of the Act. This section further states that if

the court finds that a person has committed an offence and

was a child on the date of commission of the offence, it shall

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forward the child to the Board for passing orders and the

sentence. If any order and the sentence is passed by the

court, it shall be deemed to have no effect in such case. This

section also states that in case a person is required to be

kept in protective custody, while the person’s claim of being

a child is being inquired into, then such person may be

placed, in the interim period, in a ‘Place of Safety’.

80. Chapter IV of the Act of 2015 deals with

procedure in relation to child in conflict with law.

81. Section 10 under Chapter IV of the Act of

2015 provides that as soon as a child alleged to be in conflict

with law is apprehended by the police, he shall be placed

under the charge of the special juvenile police unit or the

designated child welfare police officer. The special juvenile

police unit or the designated child welfare police officer shall

produce the child before the Board without any loss of time,

but within a period of 24 hours of apprehending the child

excluding the time necessary for the journey from the place

where the child was apprehended. It clarifies that in no case

a child alleged to be in conflict with law shall be placed in a

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police lock-up or lodged in a jail. It also provides that the

State Government shall make rules consistent with the Act

to provide for persons through whom (including registered

voluntary or non-governmental organization) any child

alleged to be in conflict with law may be produced before the

Board and to provide for the manner in which the child

alleged to be in conflict with law may be sent to an

Observation Home or Place of Safety as the case may.

82. Section 11 under Chapter IV of the Act of

2015 provides that any person in whose charge a child in

conflict with law is placed shall while the order is in force

have responsibility of the child as if the said person was the

child’s parent and responsible for the child’s maintenance. It

further clarifies that the child shall continue to stay in the

person’s charge for the period stated by the Board. The

person shall continue to have charge of the child even when

the child is claimed by the parents or any other person

except when the Board is of the opinion that the parent or

any other person are fit to exercise charge over such child.

83. Another important provision, which is

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noteworthy for us is Section 12 in Chapter IV of the Act of

2015, which deals with bail to a person who is apparently a

child alleged to be in conflict with law.

84. While interpreting Section 12, the Board is

duty bound to be guided by the fundamental principles

enumerated in Section 3 of the Act of 2015, specially the

principles of ‘best interest’, ‘repatriation’ and ‘restoration’ of

child. The fundamental principles in Section 3(xii) provides

that a child shall be placed in institutional care as a step of

last resort after making a reasonable inquiry. The gravity

and nature of the offence are immaterial for consideration of

bail under the Act of 2015. As per Section 12 of the Act of

2015, an application for bail is not decided by reference to

classification of offences, as bailable or non-bailable under

the CrPC. All persons alleged to be in conflict with law and

apparently a child when apprehended must be released

except in the following three circumstances when there is

reasonable ground for believing that :-

(i) The release is likely to bring that person

into association with any known criminal;

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(ii) The release is likely to expose the said

person to moral or psychological danger; and

(iii) The release would defeat the ends of

justice.

85. In all cases, the Board is required to

record its reason, if it refuses to release the child on bail and

the circumstances that laid to such a decision. Taking surety

is not essential for ordering release of the child on bail. The

child may be released without surety also. The child may be

placed under the supervision of a ‘probation officer’ or under

the care of any ‘fit person’ after release on bail. It further

provides that in case the court has directed release of the

child on bail after fulfilling certain conditions, but the child is

unable to fulfill those conditions in the next seven days, the

Board shall modify those conditions.

86. The Board is vested with the power to

grant bail to any person, who has not completed the age of

18 years irrespective of the nature of offence being ‘bailable’

or ‘non-bailable’ or specified in any of three categories of the

Act, as ‘petty offences’, ‘serious offences’ and ‘heinous

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offences’.

87. Our irresistible conclusion, on dealing

with the provisions prescribed under Section 12 of the

Act of 2015, to answer the fourth question “Whether

seriousness of the offence alleged is a ground for

rejecting the bail in case of a child in conflict with

law ?” is, thus, plain and simple. Seriousness of the

offence alleged cannot be made a ground for rejecting

bail in case of a child in conflict with law.

88. Thus, the fourth question for

determination is answered, accordingly.

89. The reason for our answer is that the

principle of bail under the Act of 2015 is not the same as

enumerated under Chapter XXXIII of the CrPC. Bail and not

institutionalization continues to be the principle under the

Act.

90. Section 13 of the Act of 2015 provides

that where a child alleged to be in conflict with law is

apprehended, the Child Welfare Police Officer of the police

station, or the special juvenile police unit to which such child

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is brought, shall, as soon as possible after apprehending the

child, inform the parents or guardian of such child, if they

can be found, and direct them to be present at the Board

before which the child is produced. The Probation Officer, or

if no Probation Officer is available, the Child Welfare Police

Officer, shall also inform the Probation Officer or in his

absence a Child Welfare Officer to prepare the social

investigation report containing information regarding

antecedents and family background of the child and other

material circumstances likely to be of assistance to the Board

for making the inquiry. Section 13(2) of the Act of 2015

provides that if a child is released on bail, the Probation

Officer or the Child Welfare Officer shall be informed by the

Board.

91. Section 14 of the Act of 2015 provides for

inquiry by the Board regarding a child in conflict with law.

92. Section 14(1) of the Act of 2015 provides

that where a child alleged to be in conflict with law is

produced before a Board, then the Board shall hold an

inquiry in accordance with the provisions of the Act and may

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pass such orders in relation to the child as it deems fit under

Sections 17 and 18 of the Act of 2015.

93. Section 14(2) of the Act of 2015 provides

that inquiry under this section shall be completed within a

period of four months from the date of first production of the

child before the Board, unless the period is extended, for a

maximum period of two more months by the Board, having

regard to the circumstances of the case and after recording

the reasons in writing for such extension.

94. Section 14(3) of the Act of 2015 provides

that a preliminary assessment in case of ‘heinous offences’

under Section 15 shall be disposed of by the Board within a

period of three months from the date of first production of

the child before the Board.

95. Section 14(4) of the Act of 2015 provides

that in case of ‘petty’ or ‘serious offences’, if inquiry by the

Board remains inconclusive even after the extended period,

the proceedings shall stand terminated. Proviso to this

section provides that for ‘serious’ or ‘heinous offences’, in

case the Board requires further extension of time for

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completion of inquiry, the same shall be granted by the Chief

Judicial Magistrate or, as the case may be, the Chief

Metropolitan Magistrate, for reasons to be recorded in

writing.

96. Section 14(5) of the Act of 2015 provides

the following steps to be taken by the Board to ensure fair

and speedy inquiry.

97. Section 15 of the Act of 2015, which

enumerates special provisions to tackle the child offenders

committing ‘heinous offences’ in the age group of 16 to 18

years is equally important for us. If a child in the age group

of 16 to 18 years is alleged to have committed ‘heinous

offence’, as defined in Section 2(33) of the Act, the Board is

required to conduct a preliminary assessment.

98. In order to determine, in case of a child in

the age group of 16 to 18 years alleged to have committed a

‘heinous offence’, whether he should be transferred to the

Children’s Court to be tried as an adult, the Board has to

follow certain essential steps.

99. Firstly, it must conclusively determine that

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the child in conflict with law before it is above the age of 16

years, but below the age of 18 years on the date of

commission of the offence. The determination of age is very

crucial for the child as the same has the potential to expose

him to the possibility of being transferred to the Children’s

Court to be tried as an adult.

100. Secondly, if the Board comes to the

conclusion that the child before it was 16 years or above,

but below the age 18 years on the date of commission of the

offence, it would be required to conclusively determine

whether the offence alleged to have been committed by him

is a ‘heinous offence’ or not.

101. Thirdly, transfer of a child for trial as an

adult can only be done after preliminary assessment by the

Board. The word ‘shall’ in Section 15(1) indicates that it is

mandatory for the Board to conduct ‘preliminary

assessment’. The ‘preliminary assessment’ has to be

conducted to assess :-

(1) Child’s mental and physical capacity to

commit alleged offence;

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(2) Child’s ability to understand consequences

of the offence; and

(3) the circumstances in which the child

allegedly committed the offence.

102. Fourthly, after the preliminary assessment,

the Board is required to further determine whether it would

deal with the case of the child itself or transfer him to the

Children’s Court.

103. The aforesaid mandatory requirements are

to be carefully conducted while determining whether a child

should be transferred to the Children’s Court to be tried as

an adult or not. The legislature has provided that for the

purpose of preliminary assessment the Board may take

assistance of an experienced psychologist or psycho-social

worker or other experts.

104. It needs to be kept in mind at this

juncture that Section 14(3) of the Act of 2015 obligates that

preliminary assessment in case of ‘heinous offences’ under

Section 15 should be completed within three months by the

Board from the date of first production of the child before

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the Board.

105. If the Board is satisfied on preliminary

assessment that the matter should be disposed of by the

Board then the Board shall follow the procedures, as far as

may be, for trial in summons case under the CrPC. In case,

the Board after preliminary assessment under Section 15 of

the Act passes an order that there is need for trial of such

child as an adult, it may order for transfer of the case to the

Children’s Court having jurisdiction to try such offence.

106. Now, the stage is set for answering the

first and the second questions : “(i) Under which provision

of law, a child, who has completed or is above the

age of 16 years and is alleged to have committed a

‘heinous offence’ can maintain his application for

release on bail during the pendency of preliminary

assessment by the Board under Section 15 of the Act

of 2015 ?” ; and “(ii) Under which provision of law, a

child, who has completed or is above the age of 16

years and is alleged to have committed a ‘heinous

offence’ can maintain his application for release on

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bail after the transfer of his case to the Children’s

Court for trial by the Board ?”

107. The Act of 2015 is a complete code in

itself. The legal proposition that a special act (the Act of

2015 in the present case) shall override the provisions of the

general act (CrPC) is unexceptionable. At this stage, it would

be profitable to refer to Sections 4 and 5 of the CrPC, which

are set out hereinbelow :-

“Section 4. Trial of offences

under the Indian Penal Code and other

laws.- (1) All offences under the

Indian Penal Code(45 of 1860) shall be

investigated, inquired into, tried, and

otherwise dealt with according to the

provisions hereinafter contained.

(2) All offences under any other law

shall be investigated, inquired into, tried,

and otherwise dealt with according to the

same provisions, but subject to any

enactment for the time being in force

regulating the manner or place of

investigating, inquiring into, trying or

otherwise dealing with such offences.

Section 5. Saving.- Nothing

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contained in this Code shall, in the absence

of a specific provision to the contrary,

affect any special or local law for the time

being in force, or any special jurisdiction or

power conferred, or any special form of

procedure prescribed, by any other law for

the time being in force.”

108. A conjoint effect of Section 4(2) read with

Section 5 of the CrPC is that all offences, whether under the

Indian Penal Code or under any other law, have to be

investigated, inquired into, tried, and otherwise dealt with

according to the provisions of the CrPC, unless there be an

enactment regulating the manner or place of investigating,

inquiring into, trying or otherwise dealing with such offences,

in which case an enactment will prevail over those of CrPC.

The jurisdiction under Section 4 of the CrPC is

comprehensive and to that extent till no valid machinery is

set up under any Act for investigation or trial, the jurisdiction

of the machinery provided under the CrPC cannot be said to

have been excluded.

109. As a natural corollary, since the Act of

2015 is a special act, which contains provision for bail, the

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same shall prevail over those of the CrPC. From a close

reading of Section 12, it would be evident that it is the only

provision under the Act of 2015, which deals with grant of

bail to a child in conflict with law. Section 12 does not debar

a child, who has completed or is above the age of 16 years

and is alleged to have committed a ‘heinous offence’ from

maintaining his application for release on bail during the

pendency of preliminary assessment by the Board under

Section 15 of the Act of 2015 or from maintaining an

application for release on bail after the transfer of his case to

the Children’s Court for trial.

110. For the reasons aforestated, a child,

who has completed or is above the age of 16 years

and is alleged to have committed a ‘heinous offence’

can maintain his application for release on bail under

Section 12 of the Act of 2015 during the pendency of

preliminary assessment by the Board under Section 15

of the Act of 2015.

111. For the same reasons, a child, who

has completed or is above the age of 16 years and is

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alleged to have committed a ‘heinous offence’ can

maintain his application for release on bail under

Section 12 of the Act of 2015 after the transfer of his

case to the Children’s Court.

112. The first and second questions for

determination are answered, accordingly.

113. At this stage, in order to determine the

remaining issues one has to keep in mind Section 18 of the

Act of 2015, which provides that where the Board is

satisfied on inquiry that a child, irrespective of his age, has

committed a ‘petty offence’, or a ‘serious offence’, or a child

below the age of 16 years has committed a ‘heinous

offence’, then, notwithstanding anything contrary contained

in any other law for the time being in force, and based on

the nature of offence, specific need for supervision or

intervention, circumstances as brought out in the social

investigation report and past conduct of the child, the Board

may, if it so thinks fit, pass any of the dispositional order, as

discussed in clauses (a) to (g) of Section 18 (1) of the Act of

2015.

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114. Additionally, the Board may also pass

orders, as indicated in Section 18(2) (i) to (v) of the Act of

2015.

115. Further Section 18(3) of the Act of 2015

provides that where the Board, after preliminary assessment

under Section 15 of the Act of 2015, comes to the

conclusion that there is need for trial of the child as an adult,

it may order, transfer of the trial of the case to the

Children’s Court having jurisdiction to try such offences.

116. The sixth question framed by us is in two

parts. The first part is “What is the scope of Section

19(1)(i) of the Act of 2015 in connection with the

trial of a child as an adult ?” and the second part is

“Whether the provisions of Section 19 of the Act are

mandatory or the Children’s Court has to compulsorily

follow the recommendations of the Board made under

Section 15 read with Section 18(3) of the Act of

2015?”

117. The answer to the above question will also

be in two parts.

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118. Upon a case of a child having been

transferred to the Children’s Court, a duty has been cast

upon the Children’s Court to further decide about the

suitability of the child to be tried as an adult.

119. The words used in Section 19(1)(i) and

19(1)(ii) give two options to the Children’s Court. First, to

try the transferred child as an adult and second not to deal

with child as an adult.

120. The Children’s Court is required to record

its reason while arriving at a conclusion whether the child

should be treated as a child or as an adult, in view of Rule

13 (6) of the Rules.

121. In case, the Children’s Court decides

to deal with child as a child, it has to conduct an

inquiry as a Board following the procedures for trial of

summons case in accordance with the provisions of

Section 18 as would appear from the words used in

Section 19(1)(i) of the Act of 2015.

122. In case, it decides to try the child as

an adult, it shall follow the procedures, as prescribed

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by the CrPC for the purpose of trial by Sessions Court

and pass appropriate orders after trial without

prejudice to the provisions of Sections 19 and 21 of

the Act considering special ‘needs of the child’ the

tenets of ‘fair trial’ and maintaining a ‘child friendly’

atmosphere as provided under Section 19(1)(i) of the

Act of 2015.

123. The aforesaid discussion answers the first

part of the sixth question.

124. Having analysed scope of Section 19(1)(i)

of the Act of 2015, now let us examine the second part of

sixth question framed by us : “whether the provisions of

Section 19 of the Act of 2015 are mandatory or the

Children’s Court has to compulsorily follow the

recommendations of the Board made under Section 15

read with Section 18(3) of the Act of 2015?”.

125. The opening expression used in Section

19(1) is “after the receipt of preliminary assessment from

the Board under Section 15, the Children’s Court may

decide” gives an impression that the Children’s Court may

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or may not decide in terms of Section 19 whether or not

there is need for trial of the child as an adult.

126. However, if Section 19(1)(i) of the Act of

2015 is read together with Rule 13(6) of the Rules framed

by the Central Government, which stipulates that the

Children’s Court shall record its reason while arriving at a

conclusion whether the child is to be treated as an adult or

as a child, it would be evident that the provisions of Section

19(1) are not optional.

127. The expression used in Rule 13(6) of the

Rules is ‘shall’ and thus mandates the Children’s Court to

record its reason while arriving at a conclusion whether the

child is to be treated as an adult or a child.

128. Hence, the answer to the second part

of sixth question is that the provisions of Section

19(1) of the Act of 2015 are mandatory. The

Children’s Court cannot dispense with the requirement

of deciding as to whether there is need to try the

transferred child as an adult or to deal with the

transferred child as a child. In other words, the

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Children’s Court has to compulsorily follow the

recommendations of the Board made under Section 15

read with Section 18(3) of the Act of 2015.

129. Thus, the second part of sixth question for

determination is answered, accordingly.

130. The provisions under Section 19 mandates

that Children’s Court shall ensure that the final order, with

regard to a child in conflict with law, shall include an

individual care plan for rehabilitation of child, including

follow-up by the probation officer or the District Child

Protection Unit or a social worker. The Children’s Court is

also required to ensure that the child, who is found to be in

conflict with law, is sent to a Place of Safety till he attains

the age of 21 years, thereafter, the person shall be

transferred to a jail.

131. Proviso to Section 19(3) of the Act of

2015 provides that the reformative services including

educational services, skill development, alternative therapy

such as counselling, behaviour modification therapy, and

psychiatric support shall be provided, to the child during the

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period of his stay in the Place of Safety.

132. Section 19(4) of the Act of 2015 provides

that the Children’s Court shall ensure that there is periodic

follow-up report every year by the probation officer or the

District Child Protection Unit or a social worker to evaluate

the progress of the child in place of safety and to ensure

that there is no ill-treatment to the child in any form.

133. Section 19(5) of the Act of 2015 provides

that reports under sub-section (4) shall be forwarded to the

Children’s Court for record and follow-up, as may be

required.

134. On a reading of Section 19 of the Act of

2015 in isolation, it would appear that the Children’s Court

may order for long period of stay in each case insisting stay

of the child in Place of Safety till he attains the age of 21

years and, thereafter, he shall be transferred to jail.

However, if we read Section 19 with Section 20, the

impression would be quite different.

135. Section 20 of the Act of 2015 provides

that when a child in conflict with law attains the age of 21

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years and is yet to complete term of his stay, then the

Children’s Court shall provide for a follow-up by the

probation officer or the District Child Protection Unit or a

social worker or by itself. The purpose of follow-up is to

evaluate if the child has undergone reformative changes and

if the child can be a contributing member of the society.

Such evaluation has to be based on the progress records of

the child under Section 19(4) of the Act of 2015 along with

evaluation. Such evaluation has to be made only if the child

has attained the age of 21 years, but has yet to complete

the term of stay.

136. Section 20 of the Act of 2015 empowers

the Children’s Court to release a child from the Place of

Safety without being sent to jail on attaining the age of 21

years. Now, at this stage, what would be relevant to be kept

in mind is that though ‘heinous offences’ include offences for

which the minimum punishment under the Indian Penal Code

or any other law is imprisonment for 7 years or more, on

attaining age of 21 years, the Children’s Court may release

the child on such condition as it deems fit which includes

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appointment of a monitoring authority for the remainder of

the prescribed term of stay. Thus, the minimum

imprisonment of 7 years or more in the definition of ‘heinous

offences’ is for the purpose of determining as to which

matters may be transferred to the Children’s Court.

137. Section 21 of the Act of 2015 provides

that no child in conflict with law shall be sentenced to death

or for life imprisonment without the possibility of release for

any such offence either under the provisions of the Act or

under the provisions of Indian Penal Code or any other law

for the time being in force.

138. Section 22 of the Act of 2015 provides

that despite anything contrary contained in CrPC or any

preventive detention law for the time being in force, no

proceeding shall be instituted and no order shall be passed

against any child under Chapter VIII of the said CrPC.

139. Chapter VIII of the CrPC deals with

preventive measures that may be taken by the police in

maintaining law and order. This Chapter’s title is ‘security for

keeping the peace and for good behaviour’ and contains

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elaborate provisions on the powers of the Executive

Magistrate to take measures with a view to prevent

commission of offence of breach of peace or disturbance of

public tranquility.

140. Eventually, preventive measures are

prohibited against children including passing of sentence to

execute a bond with or without sureties for keeping the

peace. The measures provided in Chapter VIII of the CrPC,

which are to be taken mostly by the Executive Magistrate are

completely prohibited in case of children in conflict with law.

In other words, the Act of 2015 bars any role of the

Executive Magistrate vis-a-vis children.

141. Section 23 of the Act of 2015 provides

that in spite of anything contained in Section 223 of the

CrPC or any other law for the time being in force, no joint

proceeding shall be conducted of a child alleged to be in

conflict with law with a person who is not child. It also

provides that if during inquiry by the Board or by the

Children’s Court, the person alleged in conflict with law is

found to be not a child then that person shall not be tried

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along with child.

142. Having analysed the ambit and scope of

the provisions prescribed under Sections 18 to 23 of the Act

of 2015 in extenso, the stage is set for determining the

seventh question, i.e., : “what is the scope of application

of the provisions of CrPC after the Board transfers the

trial of the case to the Children’s Court having

jurisdiction to try such offences and the Children’s

Court decides that there is a need for trial of the child

as an adult ?”.

143. On a perusal of the provisions prescribed

under Section 18(3) of the Act of 2015, it is quite clear that

it provides for transfer of the ‘trial’ of the case to the

Children’s Court by the Board after preliminary assessment.

144. Here, the word ‘trial’ under Section 18(3)

of the Act is of extreme importance. The transfer is made by

the Board to the Children’s Court only for the purpose of

‘trial’ and nothing else.

145. It is well settled position in law that in

case of ‘trial’ before the Sessions Court, the trial shall be

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treated to have commenced when charges are framed under

Section 228 of the CrPC.

146. We have seen hereinabove that under

Section 19 of the Act of 2015, after the receipt of

preliminary assessment report, the Children’s Court has to

decide as to whether there is a need for ‘trial’ of the child as

an adult as per the provisions of the CrPC or there is no

need for ‘trial’ of the child as an adult. The expression “as

per the provisions of the Code of Criminal Procedure, 1973”

used in Section 19(1)(i) of the Act of 2015 refers to

applicability of the provisions of the CrPC in the matter of

trial of the child as an adult.

147. Rule 13 of the Rules prescribes procedure

in relation to Children’s Court and monitoring authority. Rule

13(7) of the Rules provides that where the Children’s Court

decides that there is no need for ‘trial’ of the child as an

adult, shall decide the matter itself and, it may conduct

inquiry as if it were functioning as a Board and dispose of

the matter in accordance with the provisions of the Act and

the Rules. However, Rule 13(8) of the Rules provides that

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where the Children’s Court decides that there is a need for

‘trial’ of the child as an adult, it shall follow the procedure

prescribed by the CrPC of ‘trial’ by Sessions Court and

maintaining a ‘child friendly’ atmosphere.

148. Thus, Section 18(3) read with Section

19(1)(i) of the Act of 2015 and Rule 13(7) and (8) of the

Rules would make it evident that in case the Children’s Court

decides that there is a need for ‘trial’ of the child as an adult,

it shall follow the procedure prescribed by the CrPC of ‘trial’

by Sessions Court.

149. The CrPC provides four types of trial. They

are:-

(i) Trial before a Court of Sessions;

(ii) Trial of warrant cases by Magistrates;

(iii) Trial of summons cases by Magistrate; and

(iv) Summary trials.

150. Sections 225 to 237 deal with warrant

cases by a Court of Sessions, Sections 238 to 250 deal with

warrant cases by Court of Magistrates, Sections 251 to 259

provide procedure for ‘trial’ of summons cases by

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Magistrates and Sections 260 to 265 make provisions

relating to summary trials.

151. Under the scheme of the Act of 2015, as

far as the Children’s Court is concerned, only ‘heinous

offences’ can be transferred to it for the purposes of ‘trial’ by

the Board. The ‘heinous offences’ defined under the Act of

2015 are those, which prescribe minimum punishment of 7

years or more under the Indian Penal Code or any other law

for the time being in force.

152. Situated, thus, in our view, the scope

of application of the provisions of CrPC, after the

Board transfers the ‘trial’ of the case to the Children’s

Court to try such offences and the Children’s Court

decides that there is a need for ‘trial’ of the child as

an adult, is that while holding the ‘trial’, the Children’s

Court would follow the procedures prescribed in the

CrPC for holding trial before a Court of Sessions. In

other words, in course of trial the proceedings

prescribed in Chapter XVIII from Sections 225 to 237

of the CrPC, which deal with trial of warrant cases by

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a Court of Sessions would only be applicable while

trying a child as an adult subject to exceptions

indicated under the Act of 2015.

153. The seventh question for determination is

answered, accordingly.

154. Now, what remains to be answered is the

the fifth question, i.e., “whether an appeal under Section

101(5) of the Act of 2015 or an application under

Section 439 of the CrPC would be maintainable before

the High Court by any person aggrieved by the order

granting or rejecting bail by the Children’s Court ?”

155. While considering the above question, we

would like to analyse the provisions prescribed in Section

101 of the Act of 2015.

156. Section 101 of the Act of 2015 deals with

appellate jurisdiction under the Act. Section 101(1) of the

Act of 2015 provides that subject to the provisions of the

Act, any person aggrieved by an order of the Board may

prefer an appeal before the Children’s Court within 30 days

from the date of such order. Thus, the right to appeal is

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vested with the child in conflict with law, the victim and the

State under the aforesaid provision.

157. Proviso to Section 101(1) of the Act of

2015 deals with the power to condone the delay caused in

filing the appeal. It is clarified that Court of Sessions may

entertain the appeal even after the expiry of the said period

of 30 days, if it is satisfied that the appellant was prevented

by sufficient cause from filing the appeal in time and such

appeal shall be decided within a period of 30 days. Hence, if

an appeal is preferred after the expiry of the period of 30

days, an application for condonation of delay in filing the

appeal can be filed before the Court of Sessions and not

before the Children’s Court. In order to ensure speedy

disposal of such an application for condonation of delay, the

proviso states that such an appeal should be decided within a

period of 30 days.

158. Section 101(2) of the Act of 2015 makes

provision for appeal against the order of the Board passed

under Section 15 of the Act of 2015, after making

preliminary assessment into a ‘heinous offence’ of a child in

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conflict with law. It lays down that an appeal against an

order of preliminary assessment shall lie before the Court of

Sessions. It provides that in deciding the appeal against the

preliminary assessment findings, the Court of Sessions may

take the assistance of experienced psychologists and medical

specialists, but these psychologists and medical specialists

should not be the same whose assistance was availed of by

the Board in making preliminary assessment under the Act

of 2015.

159. It is of salience to note that Section

101(2) of the Act of 2015 mentions that an order relating to

transfer of children after preliminary assessment under

Section 15 is appealable before the Court of Sessions

meaning thereby that suitability of the child being

transferred or not for trial as an adult can be made by the

Court of Sessions at this stage under the appellate

jurisdiction. It is further important to note that even if no

appeal is filed and a case is transferred for trial to the

Children’s Court by the Board, the Children’s Court is

mandated to make its own inquiry to determine the

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suitability of the child to stand trial as an adult under Section

19(1)(i) of the Act of 2015.

160. It is noteworthy that Rule 13 of the Rules

has created some confusion regarding forum of appeal. Rule

13 refers to the ‘Children’s Court’ as the appellate court

under Section 101(1) and (2) of the Act of 2015. Since

Rules are subordinate legislation, in case of any conflict with

the enabling Act, the provisions of the Act would prevail.

Hence, an appeal against the order of the Board passed after

making preliminary assessment into a ‘heinous offence’

under Section 15 of the Act of 2015 would be maintainable

before the Court of Sessions and not before the Children’s

Court.

161. It would be interesting to note here that

Section 101(2) of the Act of 2015 does not mention, who

can file the appeal. However, when we give a closer look to

Section 15(2) of the Act of 2015, we notice that the order of

the Board to dispose of the matter by itself shall be

appealable under the said provision. This would mean that

an order passed by the Board not transferring the child in

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conflict with law after preliminary assessment to the

Children’s Court shall also be appealable under Section

101(2) of the Act of 2015. Thus, under Section 101(2) of

the Act of 2015, against the order passed under Section 15

of the Act not only a child in conflict with law, but also a

victim has been conferred with the right to appeal.

162. Section 101(3) of the Act of 2015

prohibits appeal against an order of acquittal made by the

Board except in case of a child alleged to have committed a

‘heinous offence’, who has completed or is above the age of

16 years.

163. Section 101(4) of the Act of 2015

prohibits filing of second appeal from any order of the Court

of Sessions.

164. The term ‘appeal’ is not defined in the Act

of 2015. However, it is well settled position in law that an

appeal is a rehearing by a superior court on both law and

fact. In an appeal, the court of superior jurisdiction

determines the question whether the order of the court from

which the appeal is brought was right on the material which

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the court had before it.

165. Section 101(5) of the Act of 2015

provides that any person aggrieved by the order of the

Children’s Court may file an appeal before the High Court in

accordance with the procedure specified in the CrPC. Thus,

the right to appeal is vested with child in conflict with law,

the State and the victim whosoever is aggrieved by the order

of the Children’s Court. It is the only provision in the Act of

2015 under which an aggrieved person can challenge any

order, including order granting or rejecting an application for

bail by the Children’s Court.

166. Section 1 (4) of the Act of 2015 gives an

overriding effect to the Act over any other legislation or

legislative provisions, i.e., inconsistent with it. It states that

the provisions of the Act shall apply to all matters of children

in need of care and protection and children in conflict with

law, including- (i) apprehension, detention, prosecution,

penalty or imprisonment, rehabilitation and social reintegration

of children in conflict with law; (ii) procedures

and decisions or orders relating to rehabilitation, adoption,

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re-integration, and restoration of children in need of care

and protection.

167. The non obstante clause gives primacy to

the Act in all matters concerning a child in conflict with law

and a child in need of care and protection.

168. In view of non obstante clause, every

definition of offence, every punishment and every procedure,

which is inconsistent with any of the provisions of the Act of

2015 shall have no effect in matters concerning a child in

conflict with law.

169. Since a right to appeal is neither a natural

nor an inherent right and is a creature of statute, there

cannot be any right of appeal, unless it is expressly provided

in the statute. It is a substantive right and not merely a

procedural right.

170. In view of clear language of the provisions

prescribed under Section 101(5) of the Act of 2015, any

person aggrieved by the order of the Children’s Court may

challenge the order by way of an appeal before the High

Court. The phrase ‘any order’ would also include order

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granting or rejecting bail.

171. Chapter XXIX in the CrPC containing

Sections 372 to 394 deals with the provisions of appeal

arising from any judgment or order of a criminal court.

Section 372 of the CrPC provides that no appeal shall lie

from any judgment or order of a criminal court except as

provided for by the CrPC or by any other law for the time

being in force. There is no provision in Chapter XXIX of the

CrPC enabling any person aggrieved by an order granting or

rejecting bail by the Children’s Court to file an appeal during

the pendency of the trial.

172. Thus, Section 439 of the CrPC cannot be

invoked as an appeal against an order granting or rejecting

bail by the Children’s Court.

173. Reference to the words “with the

procedure specified in the Code of Criminal Procedure, 1973”

used in Section 101(5) of the Act of 2015 cannot be

misconstrued as conferring right to any person aggrieved by

an order granting or rejecting bail by the Children’s Court to

file an application for grant of bail under Section 439(1) of

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the CrPC or an application for cancellation of bail under

Section 439(2) of the CrPC before the High Court.

174. Since the Act of 2015 provides for an

appeal against any order of the Children’s Court and the non

obstante clause provision of Section 1(4) of the Act of 2015

gives primacy to the Act, any application under provisions of

the CrPC either for grant of bail under Section 439(1) or for

cancellation of bail under Section 439(2) would be

impermissible in law.

175. In the backdrop of the position of law

as discussed above, the fifth question for

determination is answered by us holding that against

an order granting or refusing bail passed by the

Children’s Court, no application for grant of bail under

Section 439(1) or for cancellation of bail under

Section 439(2) of the CrPC shall lie before the High

Court. The remedy open to the person aggrieved under

such circumstances is only an appeal under Section

101(5) of the Act of 2015.

176. We are further of the view that the

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‘phrase’ “in accordance with the procedure specified in

the Code of Criminal Procedure” does not allude to

application of the entire CrPC to the Act of 2015. The

said reference to the CrPC in Section 101(5) of the

Act of 2015 only means that the procedure, and not

the substantive Sections, prescribed under Chapter

XXIX shall apply to the appeal that could be filed

under the said Section. To clarify further, the appeal,

in terms of Section 101(5) has to be considered on the

basis of material available on the record, i.e., material

produced before the Board under Section 13 of the

Act of 2015 and considerations arrived at in terms of

Section 12 of the Act of 2015 for the purpose of grant

of bail and not the considerations of grant of bail in

terms of Sections 437, 438 and 439 of the CrPC. The

reference in Section 101(5) to “procedure specified in

the Code of Criminal Procedure” does not enlarge the

scope of sub-sections to create a substantive right in

terms of Section 439 of the CrPC in Section 101(5) of

the Act of 2015.

177. The fifth question for determination is

answered, accordingly.

178. We, thus, sum up the references by

holding as under:-

Q. (i). Under which provision of law, a

child, who has completed or is above the age

of 16 years and is alleged to have committed

a ‘heinous offence’ can maintain his

application during the pendency of

preliminary assessment by the Board under

Section 15 of the Act of 2015?

A. For the reasons recorded hereinabove, a

child, who has completed or is above the age of

16 years and is alleged to have committed a

‘heinous offence’ can maintain his application for

release on bail under Section 12 of the Act of

2015 during the pendency of preliminary

assessment by the Board under Section 15 of the

Act of 2015.

Q. (ii). Under which provision of law, a

child, who has completed or is above the age

of 16 years and is alleged to have committed

a ‘heinous offence’ can maintain his

application for release on bail after the

transfer of his case to the Children’s Court

for trial by the Board ?

A. For the reasons recorded hereinabove, a

child, who has completed or is above the age of

16 years and is alleged to have committed a

‘heinous offence’ can maintain his application for

release on bail under Section 12 of the Act of

2015 after the transfer of his case to the

Children’s Court.

Q. (iii). Whether the powers conferred

on the Board in the matter of bail to a

person, who is apparently a child alleged to

be in conflict with law are also available to

the Children’s Court ?

A. In view of clear, unambiguous and specific

stipulation in Section 8(2) of the Act of 2015,

which provides that the powers conferred on the

Board under the Act may also be exercised by the

High Court and the Children’s Court in the matter

of grant of bail to a person, who is apparently a

child and is alleged to have committed a bailable

or non-bailable offence, the powers conferred on

the Board under the Act of 2015 are also

available to the Children’s Court and the High

Court.

Q. (iv). Whether seriousness of the

offence alleged is a ground for rejecting the

bail in case of a child in conflict with law?.

A. Seriousness of the offence alleged cannot

be made a ground for rejecting bail under the Act

of 2015.

Q. (v). Whether an appeal under Section

101(5) of the Act of 2015 or an application

under Section 439 of the CrPC would be

maintainable before the High Court by any

person aggrieved by the order granting or

rejecting bail by the Children’s Court?

A. Against an order granting or refusing bail

passed by the Children’s Court, no application for

bail or cancellation of bail under Section 439(1)

or 439(2) of the CrPC shall lie before the High

Court and against such an order only an appeal

under Section 101(5) of the Act of 2015 would

be maintainable. The ‘phrase’ “in accordance with

the procedure specified in the Code of Criminal

Procedure” does not allude to application of the

entire CrPC to the Act of 2015. The said

reference to the CrPC in Section 101(5) of the

Act of 2015 only means that the procedure, and

not the substantive Sections, prescribed under

Chapter XXIX shall apply to the appeal that could

be filed under the said Section. To clarify further,

the appeal, in terms of Section 101(5) has to be

considered on the basis of material available on

the record, i.e., material produced before the

Board under Section 13 of the Act of 2015 and

considerations arrived at in terms of Section 12

of the Act of 2015 for the purpose of grant of

bail and not the considerations of grant of bail in

terms of Sections 437, 438 and 439 of the CrPC.

The reference in Section 101(5) to “procedure

specified in the Code of Criminal Procedure” does

not enlarge the scope of sub-sections to create a

substantive right in terms of Section 439 of the

CrPC in Section 101(5) of the Act of 2015.

Q. (vi). What is the scope of Section

19(1)(i) of the Act of 2015 in connection

with the trial of a child as an adult? Whether

the provisions of Section 19 of the Act of

2015 are mandatory or the Children’s Court

has to compulsorily follow the

recommendations of the Board made under

Section 15 read with Section 18(3) of the

Act of 2015 ?

A. Upon a case of a child having been

transferred to the Children’s Court, a duty has

been cast upon the Children’s Court to further

decide about the suitability of the child to be tried

as an adult. The words used in Section 19(1)(i)

and 19(1)(ii) of the Act of 2015 give two options

to the Children’s Court. First, to try the

transferred child as an adult and second not to

deal with child as an adult. The Children’s Court is

required to record its reason while arriving at a

conclusion whether the child should be treated as

child or an adult in view of Rule 13 (6) of the

Rules. In case, the Children’s Court decides to

deal with child as a child it has to conduct an

inquiry as a Board following the procedures for

trial of a summons case in accordance with the

provisions of Section 18 as would appear from

the words used in Section 19(1)(i) of the Act of

2015. In case, it decides to try the child as an

adult, it shall follow the procedure as prescribed

by the CrPC for the purpose of trial by Sessions

Court and pass appropriate orders after trial

without prejudice to the provisions of Sections 19

and 21 of the Act of 2015 considering special

‘needs of the child’ the tenets of ‘fair trial’ and

maintaining a ‘child friendly’ atmosphere as

provided under Section 19(1)(i) of the Act of

2015.

The provisions of Section 19(1) of the Act

of 2015 are mandatory. The Children’s Court

cannot dispense with the requirement of deciding

as to whether there is need to try the transferred

child as an adult or to deal with the transferred

child as a child.

Q. (vii). What is the scope of application

of the provisions of CrPC after the Board

transfers the trial of the case to the

Children’s Court having jurisdiction to try

such offences and the Children’s Court

decides that there is a need for trial of the

child as an adult?

A. The procedure followed by the Children’s

Court for trial of a child as an adult would be of a

warrant case and the proceedings in Chapter

XVIII prescribed under Sections 225 to 237 of

the CrPC, which deal with warrant cases by a

Court of Sessions only would be applicable while

trying a child as an adult, subject to exceptions

indicated under the Act of 2015.

179. The above answers to the questions

framed by us, answer the questions of law referred by the

learned Single Judge. Hence, we remit these appeals to the

learned Single Judge to pass appropriate orders in

accordance with law.

Birendra Kumar, J. I agree.

(Ashwani Kumar Singh, J.)

( Birendra Kumar, J.)

 DATE 09.09.2019

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