CRPC

FAIR TRIAL- Introduction

“Lex uno ore omnes alloquitur” which means that everyone is equal before the eyes of the law
which is an important principle which forms the basis of judicial proceedings across the world.
The law treats everyone equally and this principle is enshrined in various provisions of the
Indian Constitution. Article 14 of the Indian Constitution exclusively deals with the Right to
Equality. Trials are an indispensable part of any proceeding. Conducting fair trails is an
important aspect of the law which ensures equality.

Concept of a fair trial

The concept of a fair trial is not just a right provided in our country but it is also guaranteed by
various other legislations all over the world. Article 6 of the European Convention on Human
Rights deals with the Right to a fair trial. According to this Article, everyone is entitled to a fair
and public hearing within a reasonable time. The trial must be conducted by an independent and
impartial tribunal established by law. The African Charter of Human Rights protects the dignity
of humans and prevents exploitation under Article 5. Article 6 of the African Charter of Human
Rights guarantees individual liberty and security to a person. The right to a fair trial is
guaranteed under Article 7 which includes various rights like:

 Right to appeal to the competent jurisdiction.

 Right to defence.
 Right to be tried.
 Right to be presumed innocent until proven otherwise.
Article 14 of the International Convention on Civil and Political Rights (ICCPR) guarantees the
right to a fair trial and Article 16 provides a right to recognition everywhere as a person before
the law. Article 10 of the Universal Declaration of Human Rights (UDHR), which guarantees the
right to a fair trial. The provisions related to a fair trial in the International Convention on Civil
and Political Rights (ICCPR) is more exhaustive and detailed than the provisions in the
Universal Declaration of Human Rights (UDHR).

Adversary system
The Court proceedings in the countries which follow common law are adversarial in nature. The
right to equality is protected in this system as both parties have an equal voice of representation.
In this system, the counsels of both the parties defend their parties and establish the facts which
are supporting them. The Judge decides on the behalf of the facts mentioned, whereas in the
inquisitorial system the involvement of judges are more. The court is actively involved in
collecting evidence. In the inquisitorial system, the judges themselves might conduct the
investigation and in certain scenarios, sometimes it can be biased. The inquisitorial system is
mostly used in the civil legal systems like France and Italy.
Trials
Trials are an inevitable aspect to bring out justice. Trials have to be conducted properly
following all the procedures and steps so that it would be fair and free from influences. There is
no proper definition of the term trial in the Code of Criminal Procedure,1973. Trials are an
examination of offence by the judicial bodies which have jurisdiction over it. Section 225 of the
Code of Criminal Procedure,1973 mandates that in every trial before the Court of Session, the
Public Prosecutor will conduct the prosecution. Section 304 of the Code of Criminal
Procedure,1973 deals provides that it is the duty of the State to provide legal assistance to an
accused if the Court feels that the accused has no sufficient means to appoint a pleader for his
defence. The Court itself will appoint a pleader in that case at the expense of the State. This
provision ensures that the trial is not biased as there is equal representation from both sides. The
High Court with the previous approval of the State Government makes rules under various
aspects for:

 The mode of selecting pleaders for defence;

 The facilities to be allowed to such pleaders by the Courts;
 The fee which is payable to such pleaders by the Government.

Presumption of Innocence
Presumption of innocence is an important factor to conduct a fair trial as it prevents wrongful
convictions. This presumption of innocence is based on the Blackstone’s ratio, which is the idea
that “It is better that ten guilty persons escape than that one innocent suffer”. This concept of
presumption of innocence is also derived from the Latin term ‘Ei incumbit probatio qui dicit, non
qui negat’, which basically means the burden of proof is on the one who declares, not on the one
who denies. It is the duty of the prosecution to prove that the accused is guilty with proper
evidence beyond any reasonable doubts.

Article 14(2) of the International Convention on Civil and Political Rights also provides that
everyone who is accused is presumed to be innocent as long as it is proved otherwise. Article
11 of the Universal Declaration of Human Rights, also deals with the presumption of innocence.

The same principle is also enshrined under Article 6(2) of the European Convention for the
Protection of Human Rights and Fundamental Freedoms.

This principle is also followed in various cases decided by the Indian Courts, in the case
of Dataram Singh v State of Uttar Pradesh, it was held that the individual freedom cannot be cut
off for an infinite period as long as the person is proved guilty. This freedom can only be
affected when the guilt is proved. There are certain provisions in the Indian Evidence Act
like Section 111A which acts as an exception for this presumption of innocence. According to
this Section, if a person has tampered the peace and security in certain places, or if they commit
any offences under Section 121, Section 121 A, Section 122 and Section 123 of the Indian Penal
Code, then they are not presumed to be innocent. Section 121 of the Indian Penal Code deals
with the offence of waging war or planning to war against the Government of India. Section
121A of the Indian Penal Code punishes the person who conspires to commit the offence of war
against the Government. Section 122 deals with the offence of collecting arms with an intention
to wage war against the Government. Section 123 deals with the offence of concealing certain
facts which would facilitate the waging of war. There is also an exception to the presumption of
innocence in offences like dowry death.

Independent, Impartial and Competent Judges

The independence of the judiciary is an indispensable aspect of every fair trial. The separation of
powers protects the independence of the judiciary. The competency of judges is an important
factor that will decide the fate of the judiciary. If the judges appointed are incompetent then the
whole process of trial is damaged. Article 217 of the Indian Constitution deals with the
appointment of the Judges of the High Court. According to this article, there are various
qualifications that have to be followed while appointing the Judges like,

 TheJudges of the High Court are appointed by the President after consultation with the
Chief Justice of India.
 The person appointed has to be a Citizen of India.
 The person must have held a judicial office for at least ten years in India.
 Theperson has to be an advocate of a High Court or of two or more such Courts in
succession for at least ten years.
There were recommendations to form the National Judicial Appointments Commission under the
99th amendment by bringing in a new Article 124A and the main functions of the commission
would be,

 To recommend persons for an appointment for the post of Chief Justice of India and
Judges of various courts in India.
 To ensure that the person recommended has all the eligibility and integrity.
 To recommend persons for transfer from one Court to another Court.
The Supreme Court struck down the amendment and held it to be unconstitutional and thus the
old collegium system of appointing the Judges was retained. The Supreme Court later brought in
new developments to bring transparency in the collegium system like the Central Government
will not prepare a draft memorandum for judicial appointment.

Venue of Trial
The venue of the trial also plays an important role in ensuring the fairness of the trial. The Court
has to be competent to deal with the cases. Section 177 of the Code of Criminal Procedure,1973
provides that the ordinary place of enquiry or trial would be the Court within whose local
jurisdiction it was committed. Section 178 of the Code of Criminal Procedure,1973 deals with
the place of trial. According to this Section, the jurisdiction can be changed in certain situations
like when it is uncertain in which of several local areas an offence is completed or when an
offence is committed partly in one place and partly in another place and when an offence is a
continuing one. According to Section 181 of the Code of Criminal Procedure, 1973 sometimes
the place of a trial depends on certain types of offences, for example, offences like kidnapping or
abduction can be tried by the Court where the person was kidnapped or abducted.
Right of the Accused to Know the Accusation
Article 22 of the Indian Constitution provides that no person can be detained in custody without
giving proper information. The Sixth Amendment of the Constitution of the United States also
provides this right of the accused to know the accusation. The accused should be aware of the
reason why he is being detained. Section 50 of the Code of Criminal Procedure also provides that
it is the right of every accused to be informed about the various grounds of arrest. The police
officer has to inform the person of the various reasons for arrest if the arrest is done without a
warrant.

Accused Person to be tried in his Presence

It is necessary for the accused to be tried in his presence, however, there are certain situations
where the magistrate can dispense the attendance after considering relevant factors. Section
317 of the Code of Criminal Procedure,1973 grants the Magistrate this power. The Magistrate
can only dispense the attendance only if it does not affect the process of the trial in any manner.
This principle is also supported by Article 14 of the Indian Constitution which guarantees
equality.

Evidence to be taken in the Presence of Accused

Section 273 of the Code of Criminal Procedure,1973 provides that the evidence should be taken
in the presence of the accused. This provision should not be followed only in rare situations like
cases relating to the rape of a minor woman. Section 299 of the Code of Criminal
Procedure,1973 provides the conditions to record evidence in the absence of the accused.

Right of accused person to cross-examine prosecution witnesses and to produce evidence in

defence
The accused person has the right to cross-examine any number of witnesses so that it would
ensure the fairness of the trial. In the case of Mohd. Hussain Julfikar Ali v. The State (Govt. of
NCT) Delhi, the appellant was not provided with an opportunity to cross-examine the fifty-six
witnesses. Only one witness was cross-examined to complete the formality. Hence the
appellant’s conviction and sentence was set aside for the same reasons.

Right of the Accused Person to have an Expeditious Trial

The concept of speedy trial increases the public confidence in the judiciary. The concept of
speedy trial is enshrined in Article 21 of the Indian Constitution. In the case of Babu Singh v
State of Uttar Pradesh, it was said that the speedy trial is also part of the fair trial. In the case
of Kartar Singh v State of Punjab, it was declared that the speedy trial is a part of the right to life
and personal liberty. The same principle is also enforced in various other cases like Husainera
Khatoon and others v. Home Secretary, State of Bihar. The undue delay must be avoided and it
must be also ensured that all the proceedings of the trial are followed properly.

The doctrine of “Autrefois Convict” and “Autrefois Acquit”

The principle autrefois convict means ‘formerly convicted’ and the principle autrefois acquit
means ‘formerly acquitted’.The same principle is also accepted by the various Australian courts
by the name “issue-estoppel”.Autrefois convict is a defence plea that is followed and accepted by
the common law countries. This plea ensures that no person is convicted twice for the same
offence. This plea will stop the entire proceeding. The concept of double jeopardy is also
prevented by our Indian Constitution. Section 300 of the Code of Criminal Procedure,1973
provides that the person once convicted or acquitted not to be tried for the same offence. There
are certain exceptions to the above-mentioned rule in subsection (2) and (4) of Section 300 of the
Code of Criminal Procedure,1973. According to this section the person acquitted or convicted
can be tried again if the prior trial was not done by a competent court. The person acquitted or
convicted can be tried again with the consent of the State Government for any different offence
for which a separate charge has been made against the accused in the formal trial.

Conclusion
The Right to get a fair trial is an essential right of every accused. The concept of fair trial brings
confidence in the public and the people start to believe in the judiciary. It is necessary to follow
every above-mentioned aspect in order to ensure that the trial is free from biases. These rights
are not just domestic rights but also the various international conventions guarantee these rights.
Thus the concept of a fair trial is an essential aspect of every proceeding.

UNIT-5
Distinguishing Between Juvenile Delinquency and Crime by an Adult:

Crime by an
Juvenile Delinquency
Adult

Offences committed Offences created

by a juvenile are by an adult are
called delinquent acts called crimes.

In the case of a In case of adult

delinquent juvenile, committed a
there is “adjudication crime there is
hearings” “trials”

Adult committed
Juvenile offenders
a crime
undergo adjudication
undergoes trial
hearing in the Juvenile
in ordinary court
Justice Board.
of law.
 If found guilty,
If found guilty, the
the adult
juvenile is referred as
committed a
adjudicated
crime is called a
delinquent.
“convict”.

The juvenile court is

much more focused on
IN case of the
the rehabilitation of
adult committed
the juvenile. There is
a crime, a
more emphasis on
punishment is
treatment, therapy,
pronounced.
and education rather
than just punishment.

Juvenile court
In most of the
hearings are closed to
cases in case of
the public and
adult committed
typically, only the
a crime, all
lawyers, probation
hearings in the
officer, the child, and
Court are open
family are present in
to the public.
the courtroom

Introduction
A Latin maxim that suits best for the Juvenile Justice system in India is ‘Nil Novi Spectrum’
which implies that nothing is new on this earth. There has existed a presumption in the whole
world since the ancient period that the Juveniles should be dealt leniently because there exists a
system of thought that says– Young folks generally have a habit to respond in a serious and
prolonged frustration which is accompanied with aggressive approaches
.

In the last few years, it is also observed that the crimes done by children under the age of 15-16
have increased significantly. The general tendency or the psychology behind the commitment of
the crime or the causes of crime are early-life experiences, dominant masculinity, upbringing,
economic havocs, lack of education, etc. It is a matter of ignominy that the children under the
age of 6-10 are nowadays used as instruments for carrying out unlawful or illegal activities.
Since the minds of the kids possess an innocent and manipulative character, they can be lured at
a meagre cost
.Prior to the Juvenile Justice Act of 2015, 2000 and 1986, there existed the Children Act of 1960
that aimed to give effects to the international responses towards the issue of Juvenile Justice by
which they provided a uniform policy that protected the interests and rights of a Juvenile and that
looked at care, treatment, rehabilitation and development of a child per se.

But with the recent developments in the international community and subsequent emergence of
the involvement of Juveniles in crime, the Indian lawmakers are compelled to come forward with
new, progressive, and stricter laws for the concerned Juvenile system in the country. As a result,
the Juvenile Justice act of 1986 then Juvenile Justice act of 2000 and recently the Juvenile Justice
act of 2015 was passed by the Parliament.
Once former Chief Justice of India, Justice V.K. Krishna Iyer stated that we need penal code
because the child is the father of a man and if we’re neglecting the underdevelopment in
children, then we would be guilty of many faults and errors related to abandoning our children.
In the last few decades, the crime rate by the children under the age of 16 years has increased.
The reason of increasing crime rate is may be due to the upbringing environment of the child,
economic conditions, lack of education and the parental care. These are the some of the basic
reasons. And the most disappointing part is that, children (especially under the age group of 5 to
7 years) now a days are used as tool for committing the crime as at that this stage their mind is
very innocent and can easily be manipulated.

The frightful incident of “Nirbhaya Delhi Gang Rape Case”[1], on December 16, 2012 shocked
the whole nation and many debates were started among legal fraternity and socialists. The main
reason and issue of the debate was the involvement of accused, who was just six months short to
attain the age of 18 years. The involvement of the accused in such a heinous crime of rape forced
the Indian Legislation to introduce a new law and thus, Indian Parliament came up with a new
law which is known as “ Juvenile Justice ( Care and Protection), 2015.
The Introduction of the Act has replaced the existing juvenile laws and has introduced some
remarkable changes. One of the remarkable changes is juvenile under the age group of 16 to 18
years should be tried as an adult.

Definition of Child and Juvenile under the Juvenile Justice Act, 2015 and other various laws
Generally, a “child” means a person who has not attained the age of 18 years and is not mature to
understand that what is right and wrong. In modern era, the penal laws of most countries have
adopted the principle of ‘doli incapex’[2], which means of knowing that act there are committing
is a crime. The penal laws also states that Only child between the age of seven to twelve age can
be convicted, provided that, the act they have committed is a heinous crime and they have
knowledge and has attained the sufficient knowledge to understand the consequences of their act.
According to sub-section 12 of Section 2 of The Juvenile (Care and Protection) Act, 2015 a
“child” means a person who has not completed eighteen years of age. The Act classifies the term
“child” into two categories: –

 “child in conflict with law” [3], and

 “child in need of care and protection”[4].
The child who has committed an offence and he or she is under the age of 18 years on the date of
commission of the offence is basically called as “ child in conflict with law”. The second sub –
category is “ child in need of care and protection” means a child ad defined under Section 14 of
the Act.

 Children Act, 1960: Section 2(e) of the Act states “ child” means a boy who has not
attained the age of sixteen years or a girl who has not attained the age of eighteen years.
[5]
 United Nations Convention: The UN Convention on the Rights of Child, 1989 defines
that “child” means a human being below the age of eighteen years unless the law
declaration applicable to child, majority is attained earlier.[6]
Difference between Juvenile and Child
A person under the age of full legal obligation and responsibility is a minor or a person who is
below the legal age of eighteen years is minor. A child being accused of a crime is not tried as an
adult and is sent to the Child Care Centre whereas juvenile is a person between the age group of
sixteen and eighteen years. A young person who is been accused of crime is a juvenile offender
and is tried as adult in court proceedings.
In general sense both the term has same meaning but however difference lies in context of
implications in the eyes of law. Minor implies young and teen persons whereas juvenile either
indicates immature person or young offenders.

History of Juvenile Justice System in India

In present era, a movement for the special treatment of juvenile offenders has started throughout
the world including many developed countries like U.K., U.S.A. This movement has been started
around the 18th century. Prior to this, juvenile offenders were treated as same as other criminal
offenders. And for the same reason, General Assembly of United Nations has adopted a
Convention on the Rights of Child on 20th November 1989. This convention seeks to protect the
best interest of juvenile offenders. The Convention states that to protect the social – reintegration
of juvenile, there shall be no judicial proceeding and court trials against them. The Convention
leads the Indian Legislation to repeal the Juvenile Justice Act, 1986 and to make a new law.
Thus, Indian Legislation came up with a new act which was called as “The Juvenile Justice
(Care and Protection of Children) Act, 2000.

Juvenile Justice Act, 2000

The Act was enacted in year 2000 with aim and intent to provide protection for children. The
mentioned was amended twice – first in the year of 2006 and later in year of 2011 .The
amendment was made to address the gap and loopholes in the implementation.
Further, the increasing number of cases of juvenile crimes in the last recent years and frightful
incident of “Delhi Gang Rape Case” has forced the law makers to come up with the law. The
major drawback of the Act was that it contains ill equipped legal provisions and malfunctioning
juvenile system was also the major reason in preventing the juvenile crimes in India. The act was
replaced soon by The Juvenile Justice( Care and Protection) Act, 2015.
Present Juvenile Justice System in India
Like the other countries, India had also made legal provisions that especially and specifically
deals with the rights and protection of juvenile offenders which seeks to tackle the problem of
juvenile delinquency. The Juvenile Justice System in India is made on the basis of three main
assumptions:-

1.young offenders should not be tried in courts, rather they should be corrected in all the
best possible ways,
2.they should not be punished by the courts, but they should get a chance to reform
3.trial for child in conflict with law[13] should be based on non-penal treatment through the
communities based upon the social control agencies for e.g. Observation Homes[14]
and Special Homes.[15]
Juvenile Justice Act, 2015
The Juvenile Justice act of 2015 replaced the Juvenile Justice act of 2000 because there existed a
need for a more robust and effective justice system that focused on deterrent as well as
reformative approaches. The approach towards Juveniles should be different from that of adults,
there were contentions made in the Parliament that the Juveniles should be given more space for
transformation or reformation or improvement and that is only possible when there’s a special
justice system. Thus, the new act i.e. the Juvenile Justice (care and protection of children) Act,
2015 focused on a Juvenile friendly approach of adjudication and disposition of matters.
Some of the salient features are as follows:

 Section 2 (12) of the Juvenile Justice (care and protection of children) Act, 2015 gives the
definition of the Child, meaning thereby that a child is a person who hasn’t completed
the age of 18 i.e. he/she is below 18. The Act has given a classification regarding the
term ‘Child’ namely “Child in need of care and protection” and Section 2 (13) of the
Juvenile Justice (care and protection of children) Act, 2015 that talks about “Child in
conflict with law”.

 There was a clear distinction made regarding the facets of offences, meaning thereby that
categories were made terming the offences as heinous, serious and petty. There have
been specifications made regarding the Juveniles who are between the age of 16-18, if
any kind of crime is committed by them then after due perusal of their mental capacity,
they can be tried as an adult.

 Introduction of Juvenile courts, meaning thereby that special courts were to be

established that will be trying the Juvenile offences only, like that of the NDPS courts,
courts dealing with POCSO, etc.
 With the coming of the 2015 Act, the scope of the definition of ‘Child in need of care &
protection’ was enhanced to another level by considering the following points from the
many mentioned in Section 2 (14) of the Juvenile Justice (care and protection of
children) Act, 2015:
 1.
1. Those whose guardians or parents are/ were unfit or uninterested in taking care
of the child.
2. Those who are/ were found performing works that are in contravention to the
labor laws.
3. Ones who have the imminent threat of marriage before attaining the specified
lawful age.
4. The meaning of adoption has also been specified in the Act through which the
rights an adopted child stands recognized.
The aims to consolidate the laws relating to children alleged and found to be in conflict with law
and children in need of care and protection by catering and considering their basic needs through
proper care& protection, development, treatment, social- integration, by adopting a child friendly
approach in the adjudication and disposal of matters in the best interest of children. The act also
focuses on rehabilitation of juvenile offenders through various child care houses and institutions.
The most important subjects of the Act are as follows:-

Claim of Juvenility
The very first and most debatable question among the legal fraternity and socialists is the “claim
of juvenility”. The claim of Juvenility is to be decided by Juvenile Justice Board. The Board has
to decide the claim of juvenility before the court proceedings but the claim of juvenility can be
raised before the court at any stage of proceedings and even after the disposal of the matter by
the Board. The Board had to consider Rule 12 of the Juvenile Justice Rules, 2007 in order to
determine the claim of juvenility. In case of KulaiIbrahim v. State of Coimbatore[16] it was
observed by the Court that accused has right to raise the question of juvenility at any point of
time during trial or even after the disposal of the case under the Section 9 of Juvenile Justice Act,
2015.
In case of Deoki Nandan Dayma v. State of Uttar Pradesh[17] the court held that entry in the
register of school mentioning the date of birth of student is admissible evidence in determining
the age of juvenile or to show that whether the accused is juvenile or child.
Again in the case of Satbir Singh& others v. State of Haryana,[18] Supreme Court again
reiterated that for the purpose of determination whether accused is juvenile or not, the date of
birth which is recorded in the school records shall be taken into consideration by Juvenile Justice
Board.
In case of Krishna Bhagwan v. State of Bihar[19] the court stated that for the purpose of trial
under Juvenile Justice Board, the relevant date for the considering the age of juvenile should be
on which the offence has been committed.
But later in case of Arnit Das v. State of Bihar[20], the Supreme Court overruled its previous
decision and held that date to decide in claim of juvenility should be the date on which the
accused is brought before the competent authority.

Juvenile Justice Board

There shall be a constitution of Board for the purpose of inquiry and hearing in the matters of
juvenile in conflict with law.[21]
The Board shall consists of Principal Magistrate and two social workers, among whom one
should be a women.[22]The Act provides that under no circumstances the Board can regulate
and operate from regular court premises. The decision taken by the Principal Magistrate shall be
final.[23],
Special Procedure of Juvenile Justice Board: The Act has provided the procedure against the
juvenile offender. Following are the main special procedure –

1.The proceedings cannot be initiated on a complaint registered by the police or citizen

2.The hearing must be informal and should be strictly confidential.
3.The offenders should be kept under Observation Home after detention.
4.The trial of juvenile in conflict with law shall be conducted by lady Magistrate.
5.A child in conflict with law may be produced before an individual member of the Board ,
when Board is not sitting.[24]
Causes of Juvenile Delinquency
Researches and Studies shows that they are various causes of juvenile delinquency in India.
Every person has different behavioral patterns so as in case with children also. The behavior
patterns develop in early childhood and at early stage it is very difficult to identify any kind of
behavior. But as soon as, child grows up comes out to real world, behavior patterns changes from
time to time and many circumstances or situation may arose the delinquent behavior in them.
Following are some of the causes of Juvenile Delinquency:-

1.Adolescence Instability- The biological, psychological and sociological are one of the
important factors in the behavior pattern of adolescent. At this stage, teenagers become
more conscious about their appearances and fashions, enjoyment, food, play and etc.
And at this age, they want freedom and they wanted to be independent but sometimes
they are given any chances and oppournities by their parents, teachers and elders this
leads to development of anti – social behavior in them. Thus, this anti – social behavior,
biological changes, psychological causes are some of the reasons which are responsible
for juvenile delinquency.
2.Disintegration of Family System- Disintegration of family system and laxity in parental
control is also the main cause of increasing rates of juvenile delinquency. In normal
cases divorce of parents, lack of parental control, lack of love and affections are the
major factors of juvenile delinquency.
3.Economic condition and Poverty- Poverty and poor economic condition is also
considered has major contributing factor of increasing juvenile crimes as result of
poverty, parents or guardian fails to fulfill the needs of the child and at the same time
children wants that their desires should be fulfilled by parents by hook or by cook and
when their desires are met they start themselves indulging in stealing money from
homes or any other parents. And this develop habitual tendency of stealing which
results into theft at large scale.
 4.Migration- Migration of deserted and destitute juveniles’ boys to slums areas brings
them in contact with some anti – social elements of society that carries some illegal
activities like prostitution, smuggling of drugs or narcotics etc. These sorts of activities
attract the juvenile a lot and they may involve themselves in such activities.
5.Sex Indulgence- The children those who have experienced sex assault or any other kind
of unwanted physical assault in their early childhood may develop any kind of
repulsiveness in their behavior and mind. In this age they may become more vagrants or
may want to have sex experience. Too much of sex variance may lead the boys towards
the crime of kidnapping and rapes etc.[25]
6.Modern Life Style- The rapidly changing society patterns and modern living style,
makes it very difficult for children and adolescents to adjust themselves to the new
ways of lifestyle. They are confronted with problems of culture conflicts and are unable
to differentiate between right and wrong.[26]
Juvenile Justice and Constitution of India
The Constitution of India is consider as the fundamental law of India. Constitution provides
rights and duties of citizens. It also provides provision for the working of the government
machineries. Constitution in Part III has provided Fundamental Rights for its citizens in the same
manner in its Part IV it has provided Directive Principles of State Policies (DPSP) which acts as
general guidelines in framing government policies. Constitution has provided some basic rights
and provisions especially for the welfare of children. Like: –

1.Right to free and compulsory elementary education for all the children under the age of 6
to 14 years. (Article 21A)
2.Right to be protected from any hazardous employment under the age of fourteen age.
(Article 24)
3.Right to be protected from being abused in any form by an adult. (Article 39(e)).
4.Right to be protected from human trafficking and forced bonded labour system. ( Article
(Article 39)
5.Right to be provided with good nutrition and proper standard of living. (Article 47)
6.Article 15(3) of the Constitution of India provides special powers to State to make any
special laws for the upliftment and the betterment of children and women.
Therefore, the law makers while drafting the Juvenile Act, 2015 has consider all the necessary
provisions laid down by the Constitution so that child’s rights are protected in all the possible
ways.
This is for the same reason that Chapter IV of the Act lays down the provisions for betterment of
the juveniles and has focused on the Reformation and Rehabilitation of Juveniles in all the
possible circumstances.

Criminal Justice (Reformative or Punitive) and Juvenile

Juvenile Justice is a legal framework which defines justice for juvenile under the Indian Legal
System. The system is giving a special treatment and protection to juvenile delinquency.
Juvenile Delinquency means a crime committed by youth who is under the age of 18 years. At
present, everyone knows that there is an increasing rate of juvenile crimes and this increasing
rate is creating a debatable issue of age determination. Age determination is considered as one of
the most important factor to determine the maturity level of the accused. The increasing crime
rate is raising a question that whether the juvenile can be tried as an adult or not? The act itself
answer to the question that no juvenile offender who comes under the definition of “ child with
conflict with law” as defined under sub – section 13 of Section 2 of the Act shall not be tried as
adult and shall sent to Child Care Centre or any Rehabilitation Centre (till the offender attain the
age of 21 years and then he or she may shifted to the jail or prison).
Thus, the present Juvenile Law in India, considers Age Determination as paramount importance
to find out whether the offender falls under the purview of Juvenile Justice Act.
According to the Act, the maximum tenure of punishment which can be given to the juvenile
offenders is three years and this punishment is valid for heinous crime also. In case of an adult
offender, the maximum punishment which can be given is 7 years or life imprisonment or death
penalty. But, the Act, in case of juvenile offenders believe on Reformation of juvenile as much
as possible. The reformation type of punishment under the Act includes: – Sending juvenile to
Rehabilitation Centers, Juvenile Schools or making them involve in various program headed by
government or NGO’s.
In the present scenario, there is no need to give such a minor kind of punishment for a heinous
and harsh offence just because of Age determination or Age factor. Rape is Rape, one can’t walk
way taking a plea of age factor or mental incapacity or mental unfitness.
Thus, the existing law in the name of Age determination or Age Consent, is not creating a
deterrent effect on the anti – social behavior of youth. Juvenile offenders are in believe that
committing heinous crime is no issue as they will get away very little or no punishment in name
of reformation.
Adopting of reformative theory of punishment by law, is giving an undue advantage to juvenile
to perpetuate their ability to commit crime without facing any harsh consequences. Reformation
is good but not always. If law is talking about reforming the juvenile offenders so that they can
have a better life in future then law should also talks about the rights of the victim. Justice must
be given to the victim. The theory of reformation is helping juvenile to reform but it is not
helping the victim at all.
The present juvenile system in India is created on believe that juvenile offenders can be reformed
and rehabilitated, sending them to bars or prisons will going to reaffirm their status and identity
as “criminals”. Now the question arises is that there is no guarantee that juvenile offenders will
get reformed and will not show their anti – social behavior again.
The act is totaling focusing on the reformation rather than penalization. Penalization will
definitely will create a deterrent effect on the juvenile and increasing rate of crime by juvenile
will slow down.

What is the doctrine of ‘Doli Incapax’

One amongst the important principles of Criminal Jurisprudence is the doctrine of ‘Doli
Incapax’, which enunciates the criminal liability of the Juvenile. When this doctrine is applied
and interpreted with regards to the Indian Laws, the result it gives is that no Juvenile under or of
the age of 7 years should be prosecuted for the commission of the crime.
The doctrine of ‘Doli Incapax’ means the incapability of committing a crime. It finds its basis on
article 40 (3) (a) of the United Nations Convention on Rights of Child, that states that every
country must mention the minimum age for the children who should be exempted from any kind
of criminal liability because of their inability to decipher the nature and consequences of the act.
For Juveniles falling under the age of 8 to 14 years, the prosecution has the liability to prove the
offence of the concerned child.
The main aims of this doctrine can be elucidated in the following points:

 A child should be protected from the gravity of punishment inflicted upon him to his act.
A reformative approach should be adopted to make the child overcome his paranoia.
 A child that belongs to the age group of below 7 years, doesn’t possess the mental
capacity to analyze the consequences of his acts, he/ she may lack the knowledge as
well as the intention to commit a crime and mere ‘actus reus’ cannot be a ground for
prosecution unless accompanied with ‘mens rea’.
Penal provisions and related judgements:

 Section 82 and 83 of the Indian Penal Code, 1860 talks specifically about the exemption
from prosecution of the Juveniles.
 The Supreme Court in the case of Kakoo V. State of Himachal Pradesh reduced the
punishment of a 13-year-old boy who had raped a 2-year-old girl. The court took into
consideration sec. 83 and 84 of the IPC that Juveniles can’t be treated as that of the
adults. Thus, it is a very well-settled law that while dealing with the Juveniles the court
should consider reformative and humanitarian approaches.
 But in the case of Heeralal V. State of Bihar, a child threatened an adult that he’ll chop
him into pieces and subsequently the child stabbed a person till his death. He was
sentenced by the trial court with a reasoning that the child was mature enough to
understand the ramifications of his act. The Supreme Court also dismissed the petition.
What role does the Police play
The Police in the Juvenile Justice System are known to be the gatekeepers, meaning that they are
the ones who have the power to make initial decisions regarding how the case would be handled.
The gatekeepers enjoy a huge amount of discretion, as a result, only a few cases come up from
the plethora of acts committed and this is again a great matter of ignominy.
If a piece of information is received by the Police officer, then it is a provision that they should
be kept in special homes and not lockups or jail, the matter is to be dealt with by a child welfare
officer, who’ll be reporting things to the Juvenile Justice board. In some of the cases, it is also
observed that the Police officer may on prima facie facts & circumstances grant bail to the
Juvenile.
The main reason for the appointment of a child welfare officer is because many of the research
works have shown that the interaction between the Police and the young people are often
characterized by high levels of fear, domination, mistrust, dissatisfaction, etc. Police on the other
hand sometimes behave in a hectoring and stubborn way, which then results in the establishment
of negative perceptions.
The aggressive, rude, abusive and uncooperative behaviour by both sides is an imbroglio per se.

Conclusion
The increasing rates of juvenile crime in India in very concerning issue and need to be focused
upon. Although government has laid various legislation and rules to stop the incidents of juvenile
crimes but the present laws on juveniles is not creating a deterrent effect on the juveniles and
thus the results are not fruitful and legislative intent is not accomplishing.
juvenile Delinquency: It’s Legality
Juvenile Justice Act, 1986, was the first central legislation on Juvenile Justice, prior to which
each state had its own enactment on juvenile justice, which differed in the way juveniles were
treated by the different state legal systems. The Indian Constitution provides in clause (3) of
article 15 and clauses (e) and (f) of Article 39, Article 47 and Article 45.

On 20th November 1989, the United Nations General Assembly adopted the Convention on the
Rights of the Child i.e. right to survival, protection, development and participation. The
Government of India, ratified the said UN Convention on the 11th December 1992, and re-
enacted the existing law, viz., Juvenile Justice Act, 1986.

However since it did not yield the expected result, so the government proposed an act called
Juvenile Justice (Care and protection of children) Act, 2000. The Juvenile Justice (Care and
Protection of Children) Act, 2000, which has replaced the earlier Juvenile Justice Act, 1986, has
been enforced in the entire country except the State of Jammu & Kashmir from 1st April 2001.

Juvenile Justice (Care and protection of children) Act, 2000

The Act seeks to consolidate and modify the law relating to juveniles in conflict with the law and
children in need of care and protection, by providing for proper care, protection and treatment by
catering to their development needs, and by adopting a child-friendly approach in the
adjudication and disposition of matters in the best interest of children.

Sections 9 to 12 of the Juvenile Justice Act facilitates the Government to establish Juvenile
Homes, Special Homes, Observation Homes and After Care Organisations respectively for the
Juveniles.

For the betterment of the children the Juvenile Justice Act,2000 has introduced Special Trial
Process.

Section 3 : If an inquiry has been initiated against a juvenile and if during the course of which he
ceases to be a juvenile then the inquiry may be continued as if he had been a juvenile.

Section 4 :- The state Government can constitute one or more juvenile welfare boards for
discharging the duties conferred upon them in relation to the neglected juveniles under this Act.
Section 5 : the state Govt. to constitute one or more Juvenile courts for exercising the power
conferred upon such court in relation to delinquent juveniles under this Act.

Section 6 : This section provides that a person appointed as a member of the Board or as a
Magistrate shall possess special knowledge of child psychology and child welfare.

Section 7: This section asks the Board or the Juvenile Court to hold its proceedings in a room
which is different from the ordinary setting if a civil or criminal court.

Section 29 : This section allows a guardian or parents who have a certain extend of control over
the child to be present at the court thus providing the child with the mental support that he needs
and destroying the feeling of loneliness that may engulf the child.
he primary motto of punishment is to make the convict understand the grievous nature of the
crime committed and regret his/her actions. Hence after the completion (full or partial) of the
sentence, the convict has to be prepared to get back into society. The ex-convicts always viewed
with a suspicious mind by the general public. Hence the ex-convicts should be prepared mentally
and may be taught skill sets to improve their job ability.
Special programs to prevent substance abuse, improve mental health, continuing education was
framed for sexual offenders, women parolees and children in conflict with the law. The
importance slowly downgraded as the twentieth century progressed towards its end. It regained
momentum as human rights concerns are high on the activists’ list.

How does rehabilitation for juveniles work?

While the juveniles held accountable for their violation of the law and kept in juvenile homes or
other relevant correctional facilities for public safety, the primary aim is to rehabilitate them. The
rehabilitative process includes psychological assessment of the crime committed by the juvenile
and the environment, causing it to happen, therapeutic guidance, skill development, involving
them in yoga and other mind developing activities.
Financial constraints of the government wade rehabilitation away and involvement of social
workers and non-profit organisations resulted in cost-effective multi-modal rehab programs for
the juveniles.

What are the provisions made by the Juvenile Justice Act?

The Juvenile Justice Act provides for the rehabilitation of the to begin as soon as the child’s
transfer to the care home or other correctional facilities. The social reintegration of the child in
conflict with law can be done by

Aftercare care organisations

These are transitional homes where the child is kept before totally reintegrated into society.
Aftercare organisations are special homes registered under the governmental nodal agency
functions for the welfare of delinquent children.
At the aftercare organisations, the Juveniles were given,
 1.Vocational training
2.Therapeutic training to improve psychological behaviour
3.Continuing education
4.Consensus about social values
5.Economical ability to support themselves
6.Activities for physical and mental fitness

Juvenile court- Each state has special courts—usually called juvenile courts—devoted to
handling cases where minors are accused of violating a criminal statute. But, instead of
being formally charged with a crime, juvenile offenders are accused of committing a
delinquent act.

A juvenile case normally gets started when a prosecutor or probation officer files a petition
charging the juvenile with violating a criminal statute and asking that the court determine that
the juvenile is delinquent. If proven, the court enters a delinquency adjudication (similar to
an adult conviction) and may order a disposition (sentence) aimed at rehabilitating the
juvenile.

Often, the juvenile court retains legal authority over the minor for a set period of time—until
the juvenile becomes an adult, or sometimes even longer.

Age Eligibility for Juvenile Court

To be eligible for juvenile court, a young person must be considered a "juvenile" under state
law. In most states, the individual must be 17 or younger to fall under the jurisdiction of the
juvenile court. Anyone older than the "juvenile age" will go to adult criminal court.

Along with this upper age limit, some states set lower age limits for juvenile court eligibility.
This lower age limit reflects a policy decision that children under a certain age are incapable
of determining the difference between right and wrong, or forming a "guilty mind." States
with a lower age limit set it anywhere between six and 12 years old. (Children under this age
are usually excused from responsibility for acts they commit. Their cases may end up in child
protection or dependency court where a judge will evaluate the parents' fitness in raising their
child.)

Types of Cases Heard in Juvenile Court

Not all cases heard in juvenile court are delinquency cases (those involving the commission
of a crime). There are two other types of cases: dependency cases and status offenses.
Different procedures typically apply to all three types of juvenile court cases.

Juvenile delinquency cases. These cases involve minors who have allegedly committed
crimes—meaning that if the crime had been committed by an adult, the matter would have
been tried in regular criminal court. But the procedures in juvenile court differ significantly
from those in adult criminal court.

Juvenile protection or dependency cases. Cases involving minors who are abused or
neglected by their parents or guardians are also heard in juvenile court. In a juvenile
dependency or protection case, the judge will ultimately decide whether a minor should be
removed from a problematic home environment.

Cases involving status offenses. A status offense is a violation that applies only to minors.
Examples include truancy (skipping school), curfew violations, running away, and, in some
cases, underage drinking.

Common Offenses in Juvenile Cases

Over half of all juvenile arrests are made for theft, simple assault, drug abuse, disorderly
conduct, and curfew violations, according to the federal Office of Juvenile Justice and
Delinquency Prevention. In an average year, only around 6-7% of cases heard in juvenile
court involved violent offenses such as robbery, rape, murder, and aggravated assault.

Procedures in a Juvenile Court Case

When a juvenile is suspected of violating a criminal statute, the procedures are very different
from those used in adult criminal court. Most significantly, the police, prosecutors, juvenile
court intake officials, and juvenile court judges all have broad discretion to take more
informal steps in handling the case. As a result, many young offenders never reach the point
of a formal adjudicatory hearing.

Likewise, the constitutional rights of juveniles are different from those of adults who have
been accused of committing a crime. For example, although juveniles have the right to an
attorney at an adjudicatory hearing, in most states they do not have the right to have their
case heard by a jury.

Some juvenile cases are transferred to adult court in a procedure called a "waiver." Typically,
juvenile cases that are subject to waiver involve serious offenses, like rape or murder, or
juveniles who have been in trouble before. Juveniles have a right to a hearing to determine if
their case should be transferred to adult court. Juveniles tried as adults face adult criminal
convictions and penalties, such as prison time.

Sentencing Options in Juvenile Cases

Juvenile courts have a broad range of sentencing options (usually called "disposition orders")
if they find that a juvenile is delinquent. Courts can confine the juvenile in a variety of ways
—from sending the minor to a traditional juvenile detention facility to placing the juvenile
under house arrest. More importantly, juvenile courts can order a whole range of
punishments that do not involve confinement—including counseling, curfews, and probation.