Case BriefsSupreme Court

Supreme Court: In a bid to clear the air over the applicability of and the Juvenile Justice (Care and Protection of Children) Act, 2015 in a case where the accused had committed an offence in the year 1981 and had pleaded juvenility, the bench of SA Nazeer and Sanjiv Khanna, JJ elaborately discussed the schemes of the Juvenile Justice Act, 1986, the Juvenile Justice (Care And Protection Of Children) Act, 2000 and the Juvenile Justice (Care and Protection of Children) Act, 2015 and concluded that

  • all proceedings in respect of a juvenile pending in any court on the date on which the 2000 Act came into force shall continue before that court as if the 2000 Act had not been passed; and
  • 2000 Act would continue to apply and govern the proceedings which were pending when the 2015 Act was enforced.

BACKGROUND OF THE CASE


The accused was sentenced to life imprisonment for commission of the offence under Section 302 read with section 34. There was, however, the question of juvenility involved and the Trial Court held that the accused was not a juvenile as per the Juvenile Justice Act, 1986 (1986 Act) as he was more than 16 year of age on the date of commission of the offence i.e. 11.12.1981.

The conundrum in the present case was in light of the definition of ‘juvenile’ under the 1986 Act, which was below sixteen years in case of a boy and below eighteen years in case of a girl on the date the boy or girl is brought for first appearance before the court or the competent authority, whereas the Juvenile Justice (Care And Protection Of Children) Act, 2000 (2000 Act), does not distinguish between a boy or girl and a person under the age of eighteen years is a juvenile. Further, under the 2000 Act, the age on the date of commission of the offence is the determining factor.


APPLICABILITY OF THE 2000 ACT


Pratap Singh v. State of Jharkhand, (2005) 3 SCC 551 verdict and its effect

The Constitution Bench in Pratap Singh v. State of Jharkhand, (2005) 3 SCC 551 held

  • the 2000 Act would be applicable in a pending proceeding instituted under the 1986 Act in any court or authority, if the person had not completed eighteen years of age as on 1st April 2001, when the 2000 Act came into force.
  • the reckoning date for the determination of the age of the juvenile is the date of the offence and not the date when he is produced before the authority or in a court.
  • Consequently, the 2000 Act would have prospective effect and not retrospective effect except in cases where the person had not completed the age of eighteen years on the date of commencement of the 2000 Act. Other pending cases would be governed by the provisions of the 1986 Act.

Scheme of the 2000 Act

  • Legislative intent clearly expressed states that all proceedings in respect of a juvenile pending in any court on the date on which the 2000 Act came into force shall continue before that court as if the 2000 Act had not been passed.
  • If the court comes to a finding that a juvenile has committed the offence, it shall record the finding but instead of passing an order of sentence, forward the juvenile to the Juvenile Justice Board (Board) which shall then pass orders in accordance with the provisions of the 2000 Act, as if the Board itself had conducted an inquiry and was satisfied that the juvenile had committed the offence.
  • The proviso states that the Board, for any adequate and special reasons, can review the case and pass appropriate order in the interest of the juvenile.
  • The expression ‘all pending cases’ in the Explanation to Section 20 includes not only trial but even subsequent proceedings by way of appeal, revision etc. or any other criminal proceedings. Thus, in respect of pending cases, Section 20 authoritatively commands that the court must at any stage, even post the judgment by the trial court when the matter is pending in appeal, revision or otherwise, consider and decide upon the question of juvenility.
  • Juvenility is determined by the age on the date of commission of the offence. The factum that the juvenile was an adult on the date of enforcement of the 2000 Act or subsequently had attained adulthood would not matter.
  • As per Section 64, where a juvenile in conflict with law is undergoing any sentence of imprisonment at the commencement of the 2000 Act, he shall, in lieu of undergoing the sentence, be sent to a special home or be kept in a fit institution in such manner as the state government thinks fit for the remainder of the period of sentence. However, such sentence shall not exceed the maximum period provided in Section 15 of the 2000 Act. The statute overrules and modifies the sentence awarded, even in decided cases.

Applicability of the 2000 Act to the facts of the case

In light of the aforementioned legal position, the Court noticed that it can, at this stage, decide and determine the question of juvenility of the accused, notwithstanding the fact that he was not entitled to the benefit of being a juvenile on the date of the offence, under the 1986 Act, and had turned an adult when the 2000 Act was enforced.

“As the accused was less than 18 years of age on the date of commission of offence on 11.12.1981, he is entitled to be treated as a juvenile and be given benefit as per the 2000 Act.”


INTERPRETATION OF SECTION 25 OF THE 2015 ACT


Section 25 of the Juvenile Justice (Care and Protection of Children) Act, 2015 is a non-obstante clause which applies to all proceedings in respect of a child alleged or found to be in conflict with law pending before any Board or court on the date of commencement of the 2015 Act, that is, 31st December 2015. It states that the pending proceedings shall be continued in that Board or court as if the 2015 Act had not been passed.

  • The use of the word ‘any’ before the board or court in Section 25 of the 2015 Act, would mean and include any court including the appellate court or a court before which the revision petition is pending.
  • The word ‘found’ in the phrase ‘a child alleged or found to be in conflict with law’ is used in past-tense and would apply in cases where an order/judgment has been passed.
  • The word ‘alleged’ would refer to those proceedings where no final order has been passed and the matter is sub-judice.
  • The expression ‘court’ is not restricted to mean a civil court which has the jurisdiction in the matter of ‘adoption’ and ‘guardianship’ in terms of clause (23) to Section 2 of the 2015 Act . The definition clause is applicable unless the context otherwise requires.

“In case of Section 25, the legislature is obviously not referring to a civil court as the section deals with pending proceedings in respect of a child alleged or found to be in conflict with law, which cannot be proceedings pending before a civil court. Since the Act of 2015 protects and affirms the application of the 2000 Act to all pending proceedings, we do not read that the legislative intent of the 2015 Act is to the contrary, that is, to apply the 2015 Act to all pending proceedings.”


APPLICABILITY OF THE 2000 ACT VIS-À-VIS THE 2015 ACT


The Court noticed that in light of Section 6 of the General Clauses Act read with Section 25 of the 2015 Act, an accused cannot be denied his right to be treated as a juvenile when he was less than eighteen years of age at the time of commission of the offence, a right which he acquired and has fructified under the 2000 Act, even if the offence was committed prior to enforcement of the 2000 Act on 01.04.2001.

It, hence, concluded,

“In terms of Section 25 of the 2015 Act, 2000 Act would continue to apply and govern the proceedings which were pending when the 2015 Act was enforced.”


CONCLUSION ON FACTS


While the Court upheld the conviction of the accused, it set aside the sentence of life imprisonment and remitted the matter to the jurisdiction of the Board for passing appropriate order/directions under Section 15 of the 2000 Act including the question of determination and payment of appropriate quantum of fine and the compensation to be awarded to the family of the deceased.

[Satya Deo v. State of Uttar Pradesh,  2020 SCC OnLine SC 809, decided on 07.10.2020]

Case BriefsHigh Courts

Delhi High Court: A Division Bench of D.N. Patel, CJ and Prateek Jalan, J., directed that the statements under Section 164 of the Code of criminal Procedure, 1973 of children in need of care and protection should be recorded by the Metropolitan Magistrate over video conferencing or by visiting the observation homes.

Petitioner has established a Child Care Institution under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015.

Reason for filing the present petition was that, out of a rescue operation in July, 2020 ten minors who were working as child labour were rescued and brought to the Mukti Ashram.

Contention of the petitioner is that the children were compelled to leave Mukti Ashram and physically attend the Court of the Metropolitan Magistrate for recording of their statements under Section 164 of the Code of Criminal Procedure, 1973 and for giving samples for COVID-19 testing.

Respondents should lay down procedures for recording of the childrens’ statements and their medical testing, which does not require them to leave the institution or at atleast to attend at crowded public places.

Bench stated that in the interest of the children who require care and protection it should be necessitated that their exposure t crowded environments be avoided in the prevailing circumstances of the COVID-19 pandemic. As far as possible, they shouldn’t be required to leave the premises of the Child Care Institution in which they are housed.

Court directed as follows:

  • Statements under Section 164 of the Code of Criminal Procedure, 1973 of children in need of care and protection can be recorded by the Metropolitan Magistrate over video conferencing or if the Metropolitan Magistrate deems it necessary, he/ she can visit the concerned observation homes/Child Care Institutions where such children are housed, for recording the statement in person.
  • Proceedings before the Child Welfare Committees and other bodies where the children are required to participate, are already being conducted by video-conference. We direct that this process should be continued, and the requirement of taking the child out of the home/ Child Care Institution should be avoided as far as possible.
  • Covid-19 tests will also be carried out by the State authorities for the children in need of care and protection who are staying at different homes/Child Care Institutions under the Juvenile Justice (Care and Protection of Children) Act, 2015. The sample shall be collected for this purpose either at the home/Child Care Institution or at the office of the Sub-Divisional Magistrate of the area. The authorities will ensure that all precautions for the welfare of the child are taken, and that the sample is expeditiously collected, so that the child can return to the home/ institution.

In view of the above observations, petition was dismissed. [Bachpan Bachao Andolan v. GNCTD, WP(C) No. 4361 of 2020, decided on 28-07-2020]

New releasesNews

This commentary on Juvenile Justice by Kumar Askand Pandey is an attempt at analysing and understanding the law, philosophy and policies on child rights and child protection as embodied in the JJ Act, 2015. Written in the style of a section-wise commentary, the book provides to its readers an exhaustive insight into the legislative framework of the JJ Act, 2015 as supplemented and complemented by the JJ Rules, 2016.

The book contains a historical introduction to child rights in India, tracing its origin and taking us to the present times, along with 10 chapters, arranged in the same sequence and with the same title as they appear in the JJ Act, 2015. Further, Adoption Regulations, 2017 issued by Central Adoption Resource Authority have been discussed.

The book exhaustively covers the cases of the Supreme Court and the High Court in the area of Juvenile Justice.

Also  included  are  additional  learning  resources  on www.ebcexplorer.com:

  • Access to important case law as indicated by Case PilotTM .
  • Discussion ForumTM to post comments, discuss and explore ideas.
  • SCC Online® Blog to stay updated on recent happenings of the legal world.
  • Useful LinksTM get access to a compilation of learning resources.

The book will be of immense use for students of LL.B. and LL.M. Further, the book is a must for law enforcement agencies, police officers,  law teachers, researchers, scholars and practicing lawyers.


Brief Contents

I. Preliminary

II. General Principles of Care and Protection of Children

III. Juvenile Justice Board

IV. Procedure in Relation to Children in Conflict with Law

V. Child Welfare Committee

VI. Procedure in Relation to Children in Need of  Care and Protection

VII. Rehabilitation and Social Reintegration

VIII. Adoption

IX. Other Offences Against Children

X. Miscellaneous

Appendix — Juvenile Justice (Care and Protection of Children) Amendment Bill, 2018


*Buy Your Copy here: Juvenile Justice- A Commentary

Case BriefsHigh Courts

Kerala High Court: The Division Bench of K.Harilal and Annie John. JJ. allowed a revision petition filed by mother of a 15-year old girl, who was subjected to sexual assault by a family friend named Imam Mr Shafeek Al-Kasmi.

The instant petition under Section 102 of the Juvenile Justice (Care and Protection of Children) Act, 2015 challenging the order of respondent whereby it was declared that petitioner’s minor daughter required care and protection and that the child’s counselling shall be carried out by admitting her in an institution. 

Mr Ram Mohan G., counsel on behalf of the petitioner, submitted that the continued detention of a child under the orders of respondent was prejudicial to her interests and well being as she required the moral support, guidance and presence of her mother.

Mr Suman Chakravarthy, Senior Government Pleader appearing on behalf of respondent, submitted that even though the sexual assault took place in February 2019, petitioner and her relatives did not report the matter to police due to which the child could not be medically examined. Further, as per the report of District Child Protection Officer, it was not congenial to restore the child to the petitioner, since the accused was a well-known religious leader and a frequent visitor of their family, who had not been arrested so far. Therefore, the child was not safe with the petitioner.

The learned Judges interacted with the child in Chambers in the absence of her mother and relatives. The child expressed her willingness to go along with her mother or maternal grandmother but was not ready to live in the institution. 

The Court opined that inquiry, as contemplated under Section 36 of the Act, was not conducted by the respondent in the presence of petitioner or other family members of the victim. Respondent did not try to ascertain the wishes of the child. Thus, the mandate of Section 3 of the Act was violated. It was held that when the child needs care and protection, then before putting the child in Children’s Home, there should be the application of mind by the committee and it must also take into account the child’s wishes along with the investigation report of Child Welfare Committee.

In view of the above, the impugned order was set aside and Superintendent of Child Shelter Home was directed to release the child forthwith to the petitioner-mother.[Sheeja Navas v. Child Welfare Committee, 2019 SCC OnLine Ker 1156, Order dated 08-03-2019]

Hot Off The PressNews

As per Ministry of Labour & Employment, Government is following a multi-pronged strategy for elimination of child labour. It comprises of statutory and legislative measures, rehabilitation and universal elementary education along with convergence with other schemes for socio economic development. Government has enacted the Child Labour (Prohibition & Regulation) Amendment Act, 2016 which came into force w.e.f. 01-09-2016. The Amendment Act inter alia provides for complete prohibition of work or employment of children below 14 years in any occupation and process and adolescents in the age group of 14 to 18 years in hazardous occupations and processes. The amendment also provides stricter punishment for employers for violation of the Act and made the offence as cognizable.

After strengthening the legislative framework through amendment in Child Labour Act, Government has framed the Child Labour (Prohibition & Regulation) Amendment Rules, 2017 which inter alia specifies the duties and responsibilities of State Governments and District Authorities to ensure effective enforcement of the provisions of the Act. Government has also devised a Standard Operating Procedure (SOP) as a ready reckoner for trainers, practitioners and enforcing and monitoring agencies. Government is also implementing the National Child Labour Project (NCLP) Scheme for rehabilitation of child labour. Under the Scheme children in the age group of 9-14 years, rescued/withdrawn from work are enrolled in the NCLP Special Training Centres, where they are provided with bridge education, vocational training, mid day meal, stipend, health care, etc. before being mainstreamed into formal education system.  Further to ensure effective enforcement of the provisions of the Child Labour Act and smooth implementation of the NCLP Scheme a separate online portal PENCIL (Platform for Effective Enforcement for No Child Labour) has been developed.

In addition to above Ministry of Women and Child Development has enacted Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act). As per Section 2 (14) (ii) and (ix) of JJ Act, a child who is found working in contravention of labour laws for the time being in force or is found begging, or living on the street and who is found vulnerable and is likely to be inducted into drug abuse or trafficking is included as a “child in need of care and protection”, among others. The children in need of care and protection (CNCP) for rehabilitation has been placed in institutional care i.e. children homes or non-institutional care, such as sponsorship, foster care by Child Welfare Committee. As per JJ Act, 2015, State/UTs are required to set-up Child Care Institutions (CCIs) and are also required to register and monitor them under Section 41 and 54 of the Act respectively.  The primary responsibility of execution of the Act, lies with the State/UTs. However, Central Government is managing “Child Protection Services” (CPS) (erstwhile Integrated Child Protection Scheme) under umbrella Integrated Child Development Services, and providing financial assistance, as Grant-in-Aid, to the States/UTs on sharing pattern for, inter-alia, undertaking a situational analysis of children in difficult circumstances, for setting up and maintenance of various types of CCIs. Further National Commission for Protection of Child Rights (NCPCR), a statutory organization under this ministry, has developed a Standard Operating Procedure (SOP) for care and protection of Children in Street Situations to streamline the processes and interventions regarding children in street situations. Under the scheme “CPS”, institutional care is provided through CCIs, as a rehabilitative measure. In these CCIs, children are provided age appropriate education either within the institution or outside in a formal education system through convergence with other schemes and programs of the Government or civil society. Under the non-institutional care component, support is extended for adoption, foster care and sponsorship.

Ministry of Women and Child Development