Case BriefsCOVID 19Supreme Court

Supreme Court: Taking suo motu cognizance of the issue where 35 out of 57 children in a Protection Home at Royapuram, Chennai have been infected with COVID-19 and are hospitalized, the 3-judge bench of L. Nageswara Rao, Krishna Murari and S. Ravindra Bhat, JJ has asked the Health and Family Welfare Department, State of Tamil Nadu and secretary to Social Welfare Department to submit a report giving details of the reasons for the spread of COVID-19 in the said Protection Home.

“The status of the health of children in conflict with law in various protection homes in the State of Tamil Nadu shall be given in the report which shall be submitted by 15.06.2020.”

The Court also annexed a questionnaire along with the order which is to be circulated to the State Governments in order to seek information on the issue at hand. The Juvenile Justices Committees of the High Courts shall also be supplied with the questionnaire which is annexed to this order.

“The Juvenile Justices Committees of the High Courts shall ensure that the State Governments provide the information that is sought for in the questionnaire before 30.6.2020.”

The Court has based the questionnaire on it’s order dated 03.04.2020 wherein, after taking suo motu cognizance of the issue involving protection of children who fall within the ambit of Juvenile Justice (Care and Protection of Children) Act, 2015 from the spread of Coronavirus that is sweeping the world, the bench of L. Nageswara Rao and Deepak Gupta, JJ issued extensive directions to various authorities.

The matter will next be taken up on 06.07.2020.

[IN RE CONTAGION OF COVID 19 VIRUS IN CHILDREN PROTECTION HOMES, Suo Motu Writ Petition (C) No.4/2020, order dated 12.06.2020]


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COVID-19| SC issues extensive directions to protect children in Protection Homes from spread of coronavirus

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Case BriefsCOVID 19Supreme Court

Supreme Court: Taking sup motu cognizance of the issue involving protection of children who fall within the ambit of Juvenile Justice (Care and Protection of Children) Act, 2015 from the spread of Coronavirus that is sweeping the world, the bench of L. Nageswara Rao and Deepak Gupta, JJ issued extensive directions to various authorities.

DIRECTIONS TO CHILD WELFARE COMMITTEES

  • Ensure whether a child or children should be kept in the CCI considering the best interest, health and safety concerns.
  • Special online sittings or video sessions may be called to consider measures that may be taken to prevent children residing in the Children’s Homes, SAAs, and Open Shelters from risk of harm arising out of COVID­ 19.
  • Gatekeeping or preventive measures need to be considered and families counselled to ensure that institutionalization is the last resort.
  • online help desks and support systems for queries to be established at the state level for children and staff in CCIs.
  • violence, including sexual and gender­based violence may be exacerbated in contexts of anxiety and stress produced by lockdown and fear of the disease, CWCs can monitor regularly through video conferencing, WhatsApp and telephonically to ensure prevention of all forms of violence.

DIRECTIONS TO JUVENILE JUSTICE BOARDS AND CHILDREN COURTS

  • measures to be take to prevent children residing in Observation Homes, Special Homes and Places of Safety from risk of harm arising out of COVID­ 19.
  • Steps to be taken to release all children alleged to be in conflict with law on bail, unless there are clear and valid reasons for the application of the proviso to Section 12, JJ Act, 2015
  • Video conferencing or online sittings can be held to prevent contact for speedy disposal of cases.
  • Ensure that counselling services are provided for all children in Observation homes.

DIRECTION TO GOVERNMENTS

  • Develop a system for how to organise trained volunteers who could step in to care for children, when the need arises.
  • Make provisions to ensure that counselling is made available, and that there are monitoring systems in place to prevent violence, abuse, and neglect, including gender­based violence, which may be exacerbated in contexts of stress produced by lockdown.
  • Ensure adequate budgetary allocation is made to meet the costs that are likely to arise for the effective management of the pandemic, and that all bottlenecks and procedural delays ar effectively curbed.
  • Ensure adequate availability of good quality face masks, soap, disinfectants such as bleach, or alcohol­based disinfectants, etc.
  • Ensure availability of adequate food, drinking water, and other necessities such as clean clothes, menstrual hygiene products, etc.

DIRECTIONS TO CCIs

  • The Health Ministry has set up new National Helpline on COVID­19, which are 1075 and 1800­112­545. In case of any queries or clarifications related to Coronavirus pandemic, call on this number. In addition, Childline 1098 continues to be operational.
  • Staff or any other individual found to be exhibiting symptoms of COVID­19 should not be permitted to enter the CCI.
  • enforce regular hand washing with safe water and soap, alcohol rub/hand sanitizer or chlorine solution and, at a minimum, daily disinfection and cleaning of various surfaces including the kitchen and bathrooms. Where adequate water is not available, immediate steps should be taken to ensure it is made available through necessary action, including enhancing budget allocation for the said purpose.
  • Provide appropriate water, sanitation, disinfection, and waste management facilities and follow environmental cleaning and decontamination procedures.

DIRECTIONS FOR CHILDREN UNDER FOSTER AND KINDSHIP CARE

  • Families that are fostering children should receive information about how to prevent COVID­19 as indicated above.
  • Follow up should be made on their health and psychosocial well­being status, and they should be informed of how to do in case of symptoms.

PREVENTIVE MEASURES

  • Spread awareness
  • Take necessary steps to practice, promote and demonstrate positive hygiene behaviours and monitor their uptake
  • Practice social distancing
  • Cleaning and disinfecting rigorously

RESPONSIVE MEASURES

  • Conduct regular screening
  • follow procedures established by the Ministry/Department of Health and Family Welfare, if children or staff or other service providers working in the CCI become unwell.
  • CCI should have a quarantine/segregated section (where possible) & make alternate arrangements where a quarantine facility is not possible.
  • plan ahead with the local health authorities to plan for any emergency that may arise due to the COVID­19

Apart from the above mentioned directions, laid down certain directions to ensure the general wellbeing of children during the Coronavirus spread.

[IN RE CONTAGION OF COVID-19 VIRUS IN CHILDREN PROTECTION HOMES,  2020 SCC OnLine SC 354, order dated 03.04.2020]

OP. ED.

Introduction

Children are always cherished everywhere as embodiment of innocence, virtue, sheer beauty perhaps the only closer embodiment of Him. They are future citizens of the world, the true torch-bearer of a nation and entitled to the equitable principles of intergenerational equity, a rightful candidate of the peaceful world, pollution-free ambience and righteous society. Along with other laws, criminal law is often employed to protect innocent children from the attack of the depraved mind. Criminal law also decides on the age group of children for fixing the immunity/liability of the children depending upon their mental maturity. The criminal laws of various countries usually treat children below seven years age as Doli Incapax, who are completely excusable from crime; due to lack of mental maturity or absence of guilty mind — the mens rea. Children above seven and up to 12 are presumed to be innocent of an offence, unless sufficiently mentally mature to understand the nature of the act or omission. These are the provisions (Sections 82 and 83) of the main substantive Criminal Code of the land — the Penal Code, 1860[1]. Procedural criminal law, Criminal Procedure Code, 1973 in Section 360 provides for a separate trial for child offenders with special reformative aim of bringing them back to the mainstream of the society. The Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter mentioned as “JJ Act”), a special law was enacted to reform criminal justice system for children keeping in view India’s international obligation to the Convention on the Rights of the Child adopted in UN General Assembly in 1989. India ratified it in 1992. In the body of the JJ Act, 2000 under Section 2, the juvenile has been defined as a person who has not completed 18 years of age. Two important terms “juvenile in need of care and protection” and “juvenile in conflict with law” have been coined. Juvenile in conflict with the law means a person who has committed an offence under a criminal statute and is punishable under it. “Juvenile in need of care and protection” means a person who are street children, without any guardian, are neglected, are in danger of being abused by any guardian, terminally ill or abandoned, etc. Juveniles cannot be given the death penalty as per hitherto provision of Section 15 of the JJ Act, 2000; they can be kept under observation by a special official up to a maximum of three years. In other situations, they can be released after admonition by a Juvenile Justice Board and in some cases, if the juvenile is over fourteen years and earning has to pay fine or their guardian has to pay fine.

In 2013, in Delhi the brutal gang rape of a paramedic student “Nirbhaya” happened in a moving bus; where a juvenile was also a member of the ghastly assembly. It is said that he was the cruelest perpetrator and because of his age treated leniently under the scheme of the JJ Act, 2000. And was released after being confined for three years of supervision. This incident created a fear psychosis in the mind of the masses and there was a demand for speedy, ultimate preventive, disutility ? capital punishment. In this emotional backdrop the JJ Amendment Act, 2015 was enacted.[2]

Now three issues can be raised and dealt in the next paragraphs:

  1. Should a juvenile sometimes be tried as an “adult” as per Section 19 of the provision of the JJ Amendment Act, 2015?
  2. Are we aware of the rule/standard dichotomy?
  3. Whether societies’ expectation of capital punishment for a juvenile guilty of a heinous crime shall be met irrespective of the evil consequence to the concept of rule of law in a civilised country like India?

We try to analyse the issues one by one:

In our Constitution under Article 15(3) children are given a special status along with women. The Scheme of JJ Act, 2000 was in consonance with the International Convention on the Rights of the Child passed in the UN General Assembly in 1999. Thus the whole scheme of the JJ Act, 2000 was reformative and the aim is to bring a juvenile to the mainstream of the society as a useful contributor towards the State. While passing the JJ Amendment Act, 2015, it was laid down that the heinous juvenile offender of sixteen to eighteen may be tried as an adult.  Now the question is, what a heinous crime is. Is the benchmark — the quantum of punishment prescribed in substantive Criminal Law Code of IPC or other laws or the Judge’s sense of repulsion to the crime committed or requirement of further prevention of crime based on social investigation report of a juvenile?  We know that it is not possible to efficiently measure the societies’ reactions in a cost-effective way. If a juvenile destroys authority to adopt or adoption deed under Section 477 of the Penal Code or defame a State official under Section 499 IPC, based on the quantum of punishment — are these offences meritorious enough to be treated as heinous as an adult offender?

Then we can also pose a rider when a juvenile is termed as a heinous offender from a perspective of a reasonable common man? If the answer is always from the retributive instinct of vengeance, then the solution is capital punishment for a juvenile. Reflecting on it, it is irrational itself, because practically a child is born innocent and he picks the deviant values from the peers, the society where he lives. Crime sometimes a learned process and society is also responsible for it. Deviant behaviour of juveniles often results from lack of self-esteem, education, economic, social and political status, feeling of alienation, and insensitive treatment by adults and a result of discouraging environment.[3]

Society should try to reform a child but if there is hardly a chance of reform. Only in rare cases, he is a threat to society and he may be condemned to life imprisonment with hard labour with limited chance of commutation and remission. This decision also shall not hurt the society economically, as the juvenile shall contribute positively through hard labour for the community. Juveniles cannot be detained under Preventive Detention Acts as their detention is only with the aim of there formative relocation to the society as per Section 1(4)(i) of the JJ Amendment Act, 2015.

The rule/standard dichotomy always creates a problem for rule-based society.[4] As for example, the rule of a certain age for ascertaining a minority shall leave an escape route to the sufficiently mature minor, a prospective juvenile. We still believe exception proves the rule and to achieve justice as it protects — a majority of the minor population who are not sufficiently mature enough. Even the law recognises this mental immaturity and minors’ contract are treated as void, incapable of enforcement as declared in Privy Council ruling in Mohori Bibee v. Dharmodas Ghose[5] (1903, Privy Council). In property laws unborn person, until they reach legal maturity are not full-grown owner, always under the lawful control of a guardian.

If we opt for a standard element in law like “good faith”, “mala fide”, “reasonableness” these are open to evil of multitude of subjective conjectures.

The solution to these problems of dichotomy is perhaps promoting the flexible rules with scope of making sufficient discretion, the limited exceptions with preventive screening like life imprisonment with hard labour — which is nothing but disutility or preventive measure.

There is an economic analysis of the criminal law that, human being are rational choice maker, thus always calculate profit and loss of any act or omission. Thus criminal law imposes enough cost or disutility in the form of punishment for the volitional act of rational human being. Universal Declaration of Human Rights in Article 1, explains that “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” If this declaration is indeed true, then separate convention for children is not required at all. Children are special constitutional class, who most of the time a victim of the situation, which determines their fate. They are hardly their own master in the sense that they follow intentionalist discourse. Their choice is not reasoned free and not liable to be dealt with harsh disutility.

One can argue that there are enough safeguards under Section 3 of the JJ Amendment Act, 2015 as for example, it is laid down that, the Central Government, the State Governments, the Board and other agencies, as the case may be, while implementing the fundamental principles, namely:

  1. Principle of presumption of innocence, (up to the age of eighteen years from criminal act or omission).
  2. Principle of dignity and worth, (all human being are equal in worth and dignity).
  3. Principle of participation, (children shall be heard in proceeding and due regard shall be given depending upon the mental maturity of the children).
  4. Principle of best interest, (children’s best interest shall be the only consideration for the growth of the child’s full potential).
  5. Principle of family responsibility, (the primary responsibility for the care and protection of the children shall be the biological family, or adoptive or foster family).
  6. Principle of safety, (children in contact with care system shall not be maltreated or abused and it has to be seen that he is not abused even after).
  7. Positive measures, (the resources of the family and community shall be utilised in such a way that in an encouraging environment there shall be all-round development of the child and the requirement of the intervention by the Act is lessened).
  8. Principles of non-stigmatising semantic, (adversarial and accusatory words are not to be used against the child in any proceeding).
  9. Principles of non-waiver of right, (any rights or fundamental rights of children cannot be waived even by non-exercise by the children, Board or any authority).
  10. Principle of equality and non-discrimination, (there shall not be discrimination based on sex, caste, ethnicity, place of birth, access to resource and equality of the opportunity).
  11. Principle to right to privacy and confidentiality, (throughout the judicial process children’s privacy and confidentiality shall be protected).
  12. Principle of institutionalisation as a measure, of the last record, (a child shall be taken under institutionalised care after reasonable enquiry).
  13. Principle of repatriation and restoration, (any child under the scheme of the JJ Act shall be reunited with the family at the earliest and given the same socio-economic status to him before he came under the Act and unless it is not against his interest).
  14. Principle of a fresh start, (all the past records of the juvenile under the Act shall be erased unless there is a demand of special circumstance).
  15. Principle of diversion, (children in conflict with the law shall be dealt with other than judicial proceeding if it is not against the interest of the society).
  16. Principles of natural justice, (in a judicial proceeding concerning children fair hearing shall be given, rule against bias shall be applied by all persons and bodies).

But these principles are mere magic words[6], explained as — prospective spouses are made to go through marriage ceremonies and the rituals make them and other onlookers made to believe that the couple is now altogether different from the position before marriage. For children because as like other powerless groups hardly they have any meaningful impact on the powerful State officials like judiciary, police or probation officers. We can easily imagine even a juvenile of eighteen years age may not make a beneficial rational choice for meaningful consultation from a lawyer as enshrined under Article 22(1) of the Constitution, simply because of his mental immaturity. Neither he is able to prepare his defence if he gets to know the ground of arrest or detention. These principles are like directive principles of the Indian Constitution creating moral values for the State officials. The fair trial principle simply gets vitiated if a juvenile is treated as an adult who often lacking mental maturity. Juveniles usually cannot assert their rights properly.

Criminal Law (Amendment) Ordinance, 2018[7] provides the death penalty even for juveniles in some cases when gang rape is committed against the person of a minor below twelve years of age. We know in Bachan Singh v. State of Punjab[8], the Supreme Court has laid down that life imprisonment is the rule, death penalty as an exception. Thus Judges in most cases shall be reluctant to impose death penalty and needs to cite a special reason. Moreover, the death penalty is not thought to be a deterrent for crimes committed under sudden passion or grave provocation, or motivated offender. Rape and murder shall not decrease by passing the death penalty and offenders shall try to obliterate evidence. The conviction rate of crimes in India is hovering around (46.90)% in 2015, which is satisfactory compared to the previous era and thus we can stress on reformatory institutional care based approach for children[9].

Influence of the Mental Health Act, 2017 on the Juveniles

This Act was enacted in India, inconsonance with India’s international obligation to the Convention on the Rights of Persons with Disabilities held in United Nations Headquarter in 2006. This Act replaces the previous Mental Health Act, 1987. In this Act, minor has been defined as who have not completed 18 years. The definition of mental illness has been given as, (s) “mental illness” means a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs, but does not include mental retardation which is a condition of arrested or incomplete development of mind of a person, specially characterised by subnormality of intelligence. Unfortunately, in India legal insanity described in Section 84 of the Penal Code still follows the archaic M’Nanghten rules. Here a person is criminally liable if his cognitive faculty is working, that is, he knows the nature of his act and it is wrong or contrary to law. He will not get any “diminished responsibility”[10] relief for mood swings, impaired behaviour, impaired mental or physical condition unlike in England. In India, there are about 3000 psychiatrists for 120 crore people. Juvenile with mental illness often indulges in crime. State can detain their liberty, and keep them in Government and private institutions. But the Act is silent about the expenditure to be incurred in private institutions. Juveniles with mental illness cannot get admission to hospitals immediately like other patients. The doctor has to examine and verify that his illness requires admission and his decision is coming out of free will. This examination period is for 7 days which can expose the juvenile to danger. Despite statutory declaration mental persons are treated in India with cruelty due to lack of ignorance of the general population. This Act imposes a heavy burden on families to give care to the mentally ill persons, like admitting them in health care institutions. This caused resentment in the mind of mentally ill persons towards the family members. Crime in many situations is result of mental illness which can be cured with timely psychiatric intervention. The Mental Health Act, 2007 provisions are declaring noble human rights, but practically there are a lot of gaps in the Act.

Conclusion

Legislators are not immune to the emotional pressure created by the people. But they are armed with resources, like skilled criminologists, Judges, lawyers, and police force. They can reflect over any policy they make and its impact in the future. Rationality is the benchmark of the rule of law in a democratic country like India.  One can suggest that, there cannot be any deviance from the concept of the “categorical imperative” of Immanuel Kant, even when the majority do not want it. According to Kant, human beings occupy a special place in creation, and morality can be summed up as an imperative or ultimate commandment of reason, from which all duties and obligations derive. He defined an imperative as any proposition declaring a certain action or inaction to be necessary. “Act only according to that maxim whereby you can, at the same time will that it should become a universal law.” Thus barring a few, mere good is subjective but right is always desired as per community legal and moral standard. The children turned juveniles in most of the situations are more amenable to reform. Making juveniles criminally liable as adults without any rationality; expose the society to graver consequences, dogmatic insensitiveness.


 †  Assistant Professor, SLS, Pune, e-mail: bibhabasumisra@gmail.com.

[1]  K.D. Gaur, Textbook on the Indian Penal Code, Fifth Edition, Universal Law Publishing Co., 2014 at p. 117.

[2]  <http://uphome.gov.in/writereaddata/Portal/Images/j-j-act.PDF> visited on 5-10-2018.

[3]  Larry J. Siegel, Criminology: The Core Fourth Edition, Social Process Theories  p.173.

[4]  Lloyd’s  Introduction to Jurisprudence, Seventh Edition, Sweet and Maxwell p.1041.

[5]  1903 SCC OnLine PC 4.

[6]  Hagerstrom’s concept of magic in legal or in language: Lloyd’s Introduction to Jurisprudence at p. 858. He explains that as prospective spouses are made to go through marriage ceremonies and the rituals make them and other onlookers made to believe that the couple is now altogether different from the position before marriage.

[7]  <www.prsindia.org/ordinances/The20%criminal%20> visited on 5-10-2018.

[8]  Bachan Singh v. State of Punjab, (1980) 2 SCC 684

[9]  Source: <www.ceicdata.com>.

[10]  Diminished responsibility in England is a partial defence under S. 2(2) of the Homicide Act, 1957.

Case BriefsHigh Courts

Patna High Court: Ahsanuddin Amanullah, J. allowed a petition seeking to quash an order of the Sessions court on the ground that the petitioner was juvenile and protected by the Juvenile Justice (Care and Protection of Children) Act, 2015.

The petitioner along with other persons was accused of forming an unlawful assembly and damaging the informant’s property. A case was instituted under Sections 147,148,149,341,323,324 and 307 of the Penal Code, 1860 (‘IPC’) and Section 27 of the Arms Act. 1959. Petitioner’s case was considered by the Juvenile Justice Board, West Champaran Bettiah. The Board ordered the petitioner to go home in the care of his father. The petitioner, being aggrieved by the order appealed before the Sessions Judge. The Sessions Judge by an order dated 11-02-2016 convicted him under Sections 149 and 307, 149 of the IPC.

Sanjay Kumar, counsel representing the petitioner submitted that on the date of occurrence of an event, the petitioner was 15 years old, the Board had to conclude enquiry without holding anything against the petitioner. He was a member of an unlawful assembly but had no role in any overt act. There was no delinquency record against the petitioner and no complainants were lodged regarding his behaviour. The petitioner was required to be released and the appellate court had gone beyond its jurisdiction in convicting him. The conviction was totally uncalled for as the informant or the State had not filed any appeal.

Bhanu Pratap Singh for the State contended that the order of the board was sufficient and the order passed by Sessions judge regarding petitioner’s guilt is unsustainable as no appeal was preferred by the prosecution.

The Court upon perusal of the facts and circumstances held that the Sessions Judge by ordering conviction has misdirected himself as it was not an appeal by State or the informant and juvenility of the petitioner should have been considered by the court. The court quashed the order and allowed the appeal on two grounds, recording of guilt was found to be unjustified upon appraisal of evidence, and secondly, the petitioner is protected by virtue of Section 24 of the Juvenile Justice (Care and Protection of Children) Act, 2015. [Md. Isteyak v. State of Bihar, 2019 SCC OnLine Pat 1926, decided on 08-11-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: This petition was filed before the Bench of Atul Sreedharan, J., against the order passed by Special Judge (Atrocities), District Damoh where order passed by Principal Magistrate, Juvenile Justice Board, District Damoh was affirmed.

Petitioner submitted that the order was passed by the Juvenile Justice Board whereby preliminary assessment of petitioner was done and direction was given that he should be tried as an adult due to the nature of the crime committed. Petitioner was charged for the murder of a member of a depressed class. He had submitted that the assessment done above was to be concluded within a period of three months mandatory from the date of the first production of the child before the Board in accordance with the provision of Section 14(3) of the Juvenile Justice (Care and Protection of Children) Act, 2015 but this assessment took almost a year. Whereas the respondent contended the provision to be procedural with no consequence of its violation provided in the Act thus, cannot be considered a mandatory provision.

High Court was of the view that since the delay was adequately explained and no prejudice was caused to petitioner, there was no need for this Court to interpret the provision to be mandatory under all circumstances. Therefore, this petition was dismissed. [Bhola v. State of M.P., 2019 SCC OnLine MP 521, dated 01-04-2019]

Case BriefsHigh Courts

Karnataka High Court: The Division Bench of K.N. Phaneendra and K. Natarajan, JJ. allowed a habeas corpus petition filed by the maternal grandfather of a child and gave directions for care and protection of the child. 

The instant petition was filed to produce the petitioner’s grandson aged 14 years (detenue) before Court who was in the custody of a police officer. The child was suffering from mild mental retardation and his mental disability was assessed at 50 per cent. It was submitted by the petitioner that he was unemployed, his son was a mason, and his daughter (mother of the child) was also not keeping sound mental health. Therefore, he had no objection to the Court passing an appropriate order regarding care and protection of the child.

It was submitted before Court that under provisions of Juvenile Justice (Care & Protection of Child) Act, 2015 a child may be referred to Child Welfare Committee (CWC) for taking appropriate measures to keep him in any of the recognized institutions which can take care of his physical and mental health.

The Court opined that provisions of the Juvenile Justice Act are contemplated mainly to safeguard the interest with reference to taking care of and protecting the welfare of children. In view of the fact that grandfather and mother of the detenue were not capable of taking care of the detenue, the Court disposed of the petition directing the police to send detenue to CWC for proper care and protection.[Joseph v. State of Karnataka, 2019 SCC OnLine Kar 422, Order dated 18-02-2019]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Sanjeev Sachdeva, J., allowed a criminal revision petition filed against the order of the Child Welfare Committee (CWC) as affirmed by the appellate court whereby the victim girl, in this case, was held to be a minor.

The petitioners were the employer of the victim and were accused in the FIR registered under Sections 325 and 376 IPC along with Section 6 of the Protection of Children from Sexual Offences Act, 2012 read with Section 75 of the Juvenile Justice Act, 2015. The matter arose out of an issue before the CWC pertaining to wages to the victim. Since there was no document available to determine the age of the victim, a bone ossification test was conducted wherein her age was estimated to be in the range of 17-19 years. By the order impugned, the CWC determined victim’s age as 17 years; which order was affirmed by the appellate court. Aggrieved thus, the petitioners filed the instant revision.

Referring to Ram Suresh Singh v. Prabhat Singh, (2009) 6 SCC 681 and Jyoti Prakash Rai v. State of Bihar, (2008) 15 SCC 223, the High Court observed that the ossification test is not conclusive for age determination. The margin of error in age ascertained by radiological examination is two years on either side. The question that arose for consideration before the Court was ‘whether, while determining the age of the victim, the benefit of doubt in the age estimated by bone ossification test, is to go to the accused or the victim?’ Further referring to Triveniben v. State of Gujarat, (1989) 1 SCC 678 and Maru Ram v. Union of India, (1981) 1 SCC 107, the Court observed that any benefit of doubt, other things being equal, at all stages goes in favour of the accused. In the facts of the present case where age was estimated to be in between 17-19 years, the High Court held that even without considering the margin of error, the age is to be determined at 19 years. And as such, the order of the CWC holding the victim to be a minor was unsustainable. Accordingly, the order impugned, as far as it related to the determination of victim’s age, was set aside. However, the order of payment of wages and childhood loss compensation was not interfered with. The petition was disposed of in the terms above. [Shweta Gulati v. State (NCT of Delhi),2018 SCC OnLine Del 10448, dated 08-08-2018]