TRUE TYPED COPY
106/JJB-1/ASB/Dasti.20.03.12
Ms. ANURADHA SHUKLA BHARDWAJ
Principal Magistrate
Juvenile Justice Board-1,
Sewa Kutir Complex,
Kingsway Camp, Delhi-110009
BEFORE THE JUVENILE JUSTICE BOARD-I SEWA KUTIR COMPLEX: KINGSWAY
CAMP: PRESIDED OVER BY MS ANURADHA SHUKLA BHARDWAJ PRINCIPAL
MAGISTRATE
FIR NO 269 OF 2011
PS KOTWALI
STATE VERSUS& OTHERS
ORDER
Pr. Ld. APP for the State
Mr. Rohan Alva Amicus Curie
The juvenile has not been produced today as he has his examination as per the
report filed by the superintendent- Place of Safety.This orders deals with the issue of a juvenile having been sent to jail in year 2011
in spite of him having been declared a juvenile being 15 years of age in year 2009
by this Board. This is not an isolated case on this issue.
Facts of the Case
Juvenilewas produced before us in this case on 24.01.2012 by
the order of Ld MM concerned, holding him to be a juvenile on the basis of the
medical examination conducted on 08.12.2011, after he was found by the
Medical Board to be between 17-18 years of age. He was “arrested” in this case
on 07.12.2011 and was produced before regular criminal court, from where he
was sent to Central Jail in judicial custody. His age was shown by the I.O. as 18
years. Later on he was found to be juvenile and that is how juvenile came before
us.
This child was before us two years back in a case of PS Kotwali in F.I.R. no 262 of
2009. He was ten medically examined for the assessment of his age by the order
of the Board, as he did not have any other documentary proof of his age and was
found to be between 15-16 years of age as per the opinion of the Medical Board,
which has examined him on 06.11.09 and was accordingly declared to be juvenile.
In 2011, the same Police Station i.e. P.S. Kotwali treated him as an adult and
caused him to go to jail.
The IO in present case also had a doubt regarding the age of the boy and had got
him medically examined for age on the very next day i.e. 08.12.2011 without any
directions or order from the court where he was produced. Juvenile has told us
that he himself had told the I.O. that he is a juvenile and this has been the claim of juvenile since the day he was brought before us. Though now the child has
come under Juvenile Justice Administration System but he had to suffer in Jail
till 24.01.2012 for one month and seventeen days precisely. Because such misshappenings are routine, we are compelled to take judicial notice of it and to find
out how the system can be put in place to avoid reoccurrence of such
unfortunate incidents.
There is no doubt that injustice has been done to the juvenile. Board receives
children from Tihar Jail on a regular basis. Children suffer the incarceration in jails
meant for adults and endure suffering and trauma, till some one comes to their
rescue. What is striking in this case is the fact that the case of year 2009 and the
instant case, both are from same Police Station. This case, as well as other cases
of similar nature, suggest that something is missing in system and such violations
are, primarily, happening due to absence of an effective system of coordination
and linkages and also due to casualness with which young offenders are being
dealt with.
Inquiry into the Lapse
We vide order dated 24.01.2012 had asked the I.O. to give an explanation on
what steps were taken to inquire about the age of juvenile at the time of
apprehension. It does not seem believable that the juvenile would not have
informed the police that he was a juvenile of 15-16 years of age two years back and had stayed at Prayas Observation Home; a home meant for the juveniles in
conflict with law who are between 12 to 16 years of age.
The S.H.O. in his explanation given to the Board has said that the juvenile himself
had told the I.O. that he was 18 years old but since he was looking like 17-18
years old so the I.O. himself had got the boy examined medically on 08.12.2011.
The J.W.O. has also filed a report and has said that the child was medically
examined on 08.12.2011 itself, but the report of the medical examination was
received only on 21.01.2012, the delay occasioned as the process of declaration
of age took its own time.
It is stated in the report of the S.H.O. that the staff of the concerned Government
hospital refused to give the report to the I.O. and so the I.O had to formally move
an application in the Court asking for a direction to get the child medically
examined, for which application was filed on 12.01.2012 and then only on
21.01.12 IO got the Medical Board report.
None of the reports however say that any inquiry was made from the child
regarding his previous involvement; which if would have done could have helped
I.O. in obtaining the proof of age of the boy in his previous case from the Board.
This is admitted by the S.H.O., who is also the chief Juvenile welfare officer of the
Police Station that the boy did looked like 17-18 years old. He however claims that
the boy was taken to the Adult Court as he himself had told his age as 18 years.
Apparently the I.O. had a doubt that the boy could possibly be a juvenile but even
then he chose to produce him before adult court. Relevantly the Circular No. 68 of
Delhi Police, dealing with the manner in which juveniles are to be dealt with,
requires a person with doubtful age to be given benefit and produced before JJB. Thus IO, if he had doubt regarding age of juvenile, had a duty to produce the child
in the Board rather than having taken him to the Court; and even if he had taken
the child to the court, he had a duty to inform the Court that he has a doubt
about his age and that’s why he has got the child medically examined. If this were
done, the court concerned itself would have taken appropriate steps to decide
where the child should be sent, in the jail or in the Observation Home.
It is only when he failed in getting a report from the Hospital that he applied to
the Court for an order to get the child medically examined. The order of the Court
dated 12.01.2012 said that the boy be medically examined within four days. The
report was filed in the court on 21.01.2012 and the juvenile was sent to the Board
thereafter. The order of the Court reads that the juvenile was medically examined
on 08.12.2011, which shows that the boy was in fact medically examined before
the application for getting him medically examined was formally filed in the court
on 12.01.2012.
The child on his first date before us told that when his co-juvenile was being
produced in the Board he had requested the I.O. to produce him also in the
Board, yet he was made to sit in the police vehicle, and was told that he will be
produced in the adult court.
There are many “ifs” which if they had happened or had not happened the child
would not have suffered the agony of being sent to adult court and to jail.
If the I.O. had believed the juvenile that he had a previous case and would
have made an inquiry;
If the age of the juvenile was verified from the Board from his previous
case;If the I.O. had believed what he himself felt (which is shown by the fact that
he got the child medically examined the very next day), and had produced
the boy in the Board;
If only the court was told on first date of production that the boy could be a
juvenile;
If the magistrate had taken note of the age of the juvenile i.e. of 18 years
and had followed the guidelines in the case of Gopi Nath Ghosh versus
State of W.B. AIR 1984 SC 237 and had made an inquiry from the juvenile;
Or if the IO had told that he has got the child medically examined and that
the court should call for a report;
(The court in aforesaid two cases could possibly have sent the boy to OHB
instead of sending him to the jail);
If the doctors concerned had prepared the report and given it in time to the
I.O.;
And above all if only there was a mechanism in place which could have
helped the I.O. in knowing that there was a document in existence by which
the child has been declared a juvenile.
While this was being discussed Ld prosecutor put forward the argument from the
side of the I.O. asserting that no records of age of the juveniles are maintained at
the police stations and that there is in fact a prohibition on retaining and using
the records of the juveniles after the disposal of the case and the period of the
appeal. Referring to various provisions including section 19 of the JJ Act and the
principles related to confidentiality etc, it was argued that since no record of the
age of juveniles is maintained at the police station and whatever record is kept is
not accessible to anyone except the JWOs and the S.H.O.s, the I.O.s practically have no means to find out if the person before them could possibly be a juvenile,
declared so by a Court or Board in any previous involvements. We shall take up
the issue later in the order.
Report Filed by the Amicus
Mr. Rohan Alva was appointed as amicus to assist us in finding a solution to this
problem by interacting with both the juveniles in this case. He has filed a detailed
report on the “Procedure to be adopted to ensure that juveniles are not sent to
jail”.
In his report Mr. Alva has raised a concern about the casual manner in which the
issue of age is dealt with by the Investigating Officers ignorantly, negligently and
sometimes even intentionally, and the child in the process is made to suffer the
hardships of the Criminal Justice System away from the care and protection of
system -- especially enacted for him -- that is the Juvenile Justice System.
Constitutional Safeguards
Referring to the Constitutional provisions -- of Articles 15(3) -entitlement of
special treatment being children; Article 39(e)- right to protection against abuse;
Article 39(f) right to develop in a healthy manner and in conditions of freedom
and dignity and protection of childhood against exploitation and against moral
and material abandonment -- Mr. Alva submitted that how State which through
its Constitution, Enactments and National Policies has shown its commitment to
provide care and protection to its children, is , in practice, failing to act upon the well thought over and worded provisions because of the violations of the kinds
under consideration in the present case.
Safeguards in Domestic Laws, Rules and Policies
Juvenile Justice (Care & Protection of Children) Act 2000 was amended in year
2006. One significant amendment was in Section 10 titled “Apprehension of
Juvenile in Conflict with Law”. This section was amended to include a proviso to it
to the effect that “in no case a juvenile in conflict with law shall be placed in a
police lock up or lodged in jail”. It was done to stop the practice of juveniles
being kept in jails on the ground that sufficient number of observation homes
were not available. Law in 2006 responded to this crisis by way of an amendment.
Principle VI of Delhi JJ rules 2009 very specifically says that a child shall not be put
in confinement in jails. The emphasis no doubt was that no child whatever be the
circumstances shall be sent to a jail.
VI. Principle of Safety (no harm, no abuse, no neglect, no exploitation and
no maltreatment):
(a) At all stages, from the initial contact till such time he remains in contact
with the care and protection system, and thereafter, the juvenile or
child or juvenile in conflict with law shall not be subjected to any harm,
abuse, neglect, maltreatment, corporal punishment or solitary or
otherwise any confinement in jails and extreme care shall be taken to
avoid any harm to the sensitivity of the juvenile or the child.Further, the Government of India in the ‘National Plan of Action for Children
(2005)’ specifically addresses the issue of ‘Children in Conflict with Law’ by
enunciating certain goals, objectives and strategies. It recognizes that one of the
strategies to achieve the objectives enunciated therein is to ensure that- no child
under any circumstances should be lodged in prison.
Safeguards provided under International Law
The Universal Declaration of Human Rights (UDHR), the foundation of Human
Rights Law, to which India is a signatory, protects the right of juveniles of not to
be sent to jails and includes the right of those who may not be aware that they
are juveniles to not be sent to jail without a proper preliminary inquiry on age.
In the case of juveniles, the responsibility of the police is accentuated and they
are responsible for ensuring that juvenile do not suffer deleteriously when they
come into contact with the legal system.
A perusal of the International Covenant on Civil and Political Rights 1996 (ICCPR)
reveals that several of its provisions require State Parties to provide for protection
of citizens from arbitrary forms of arrest and also specifically protect the interest
of juveniles. Article 10.2(b) of the document provides that :
“Accused juvenile persons shall be separated from adults and
brought as speedily as possible for adjudication.”
Article 10.3 provides that
“The penitentiary system shall comprise treatment of prisoners the
essential aim of which shall be their reformation and social rehabilitation. Juvenile offenders shall be segregated from adults
and be accorded treatment appropriate to their age and legal
status.”
The issue of treatment of young offenders whose age may not be known has been
addressed in “Guidelines for Action on Children in the Criminal Justice System”
in Resolution dated 21.07.1997 by the Economic and Social Council and it
observes as below:
“B. Specific Targets
12. States could ensure the effectiveness of their birth registration
programmes. In those instances where the age of the child involved
in the justice system is unknown, measures should be taken to
ensure that the true age of a child is ascertained by independent and
objective assessment.”
It is stated by Mr. Alva in his report that –
“……in the treatment of juveniles a very careful and vigilant
approach has to be adopted to ensure that the apprehension of
juveniles is not effected in a mechanical manner; under no
circumstances is a child to be sent to jail; and, if due to negligence,
arbitrariness or mala fide on the part of the police officer, a juvenile
is arrested and sent to jail, it would amount to a cruel, inhuman,
and an oppressive action which would be wholly destructive of the
juvenile’s inalienable right against being sent to jail. Therefore, to take these requirements to their logical conclusion, it would be
correct to say that even in cases in which a juvenile may appear to
be an adult, vigilance at the arresting level itself is required to
ensure that a juvenile is not routinely dumped into a jail.”
Supreme Court on “Children in Jail”
Hon’ble Supreme Court has been dealing with this issue since 1980s and through
several orders and judgments, significant reforms and improvements have been
introduced and several legal and procedural safeguards have been provided.
Way back in 1983, Hon’ble Supreme Court in Sanjay Suri Versus Delhi
Administration 1988 AIR SC 414 had looked into the issue of children being sent
to jails. It is an irony that even after 29 years, we have a situation that children
are still found in Jails. In Sanjay Suri (Supra), Hon’ble Supreme Court in its order
dated 31.10.1983 had observed that:
“…We would also like to know as what is the procedure being
followed by the Courts of Metropolitan Magistrates in Delhi when
a young accused is produced before them for the purpose of
ascertaining whether he is a child or not within the meaning of
the Children’s Act and if he is not a child and is sent to judicial
custody then what is the procedure being followed by the
Superintendent of the Tihar Jail for determining whether he is
juvenile within the meaning of Jail Manual where a juvenile is
defined as a prisoner who has not attained the age of 18 years. We are anxious to ensure that no child within the meaning of the
Children’s Act is sent to the jail…”
As a result of the aforesaid order in Sanjay Suri (supra) case that a separate
juvenile ward was created in Tihar Jail. It was made mandatory for the
Magistrates to mention the age of the accused on the custody warrant and it was
made clear that warrant without age were not to be respected by the Jails.
Then in year 1983 itself Hon’ble Supreme Court in Gopinath Ghosh Versus State
of West Bengal, dealing with the similar issue, issued a practice direction for
magistrates:
“ Whenever a case is brought before the Magistrate and the
accused appears to be aged 21 years or below, before proceeding
with the trial or under taking an inquiry, an inquiry must be made
about the age of the accused on the date of occurrence. This
sought to be made so where special Acts dealing with juvenile
delinquents are in force. If necessary, the Magistrate may refer
the accused to the medical-Board or the Civil Surgeon, as the
case may be, for obtaining credit worthy evidence about age. The
magistrate may as well call upon accused also to lead evidence
about his age. Thereafter, the learned Magistrate may proceed in
accordance with law. This procedure, if properly followed, would
avoid, a journey upto the apex court, and the return journey to
the gross-root court.”Then again in year 1986, Hon’ble Supreme Court dealt with this issue in case of
Sheela Barse versus Union of India 1986(3) SCC 596 , in which it was observed
that :
“....It is an elementary requirement of any civilised society and it
had been so provided in various statutes concerning children that
children should not be confined to jail because incarceration in jail
has a dehumanising effect and it is harmful to the growth and
development of children. But even so the facts placed before us,
which include the survey made by the Home Ministry and the Social
Welfare Department show that a large number of children below
the age of 16 years are confined in jails in various parts of the
country.”
“……….That is why all the statutes dealing with children provide
that child shall not be kept in jail. Even apart from this statutory
prescription, it is elementary that a jail is hardly a place where a
child should be kept. There can be no doubt that incarceration in
jail would have the effect of dwarfing the development of the child,
exposing him to baneful influences, coarsening his conscience and
alienating him from the society. It is a matter of regret that despite
statutory provisions and frequent exhortations by social scientists,
there are still a large number of children in different jails in the
country as is now evident from the reports of the survey made by
the District Judges pursuant to our order dated 15th April, 1986.
Even where children are accused of offences, they must not be kept
in jails. …”The Hon’ble Supreme Court of India in its judgment in Arnit Das v. State of Bihar,
2000(5) SCC488 had held in the context of The Juvenile Justice Act, 1986 that:
“the purpose of the Act was to create a uniform juvenile justice
system and ensuring that juveniles are not lodged in jails or police
lock-ups. It also held that those who are entrusted with the
responsibility of implementing the Act must show sensitivity and
concern to the juvenile.”
In 2007, Hon’ble Supreme Court while examining the status of implementation of
Juvenile Justuce Act 2000, in Sampura Behrua Versus Union of India took note of
the issue of children in jail again and made following observation in its order
dated 03.01.2007:
“It deserves to be noticed at the very outset that it was more
than 20 years ago that this Court, concerned with the plight
of the children, development of their personality and the
appalling conditions in jails, issued various directions. Even in
the year 1986, this Court expressed regret that despite
statutory provisions and frequent exhortations by social
scientists, large number of children are lodged in number of
jails. It was observed that even if children are accused of
offences, they must not be kept in jails. Rejecting the
argument that there are not enough number of homes or
observation homes or other places where children can be
kept is the reason why they are lodged in jails, in Sheela Barse Vs. Union of India {(1988) 4 SCC 226], this Court
reiterated the earlier decision dated 13th August, 1986
reported in (1986) 3 SCC 632. The Government were again
impressed upon to set up the necessary mechanism, i.e.,
remand homes, observation homes etc. for lodging children.”
In year 2009 Hon’ble Supreme Court in Hari Ram versus State of Rajasthan
2009(13) SCC 211 remarked that the system will not work till the mindset of the
people associated with it changes. It was this Judgment which confirmed the
retrospective effect of the JJ Act and extended the benefit of JJ Act to all those
who were above 16 but below 18 years of age during the time when 1986 Act was
in force. Highlighting the importance of attitudinal change in the minds of duty
bearers, It was held that:
“It would be virtually impossible to achieve the objects of the JJ Act
without there being a complete change in the mindset of those
vested with the authority to enforce the JJ Act.”
We, thus see that it was in 1983 that the Hon’ble Supreme Court had shown its
concern on the manner in which the children were sent to and kept in jails and 28
years later in 2010-2011 we still had 113 children, who were sent to Tihar jail over
a small period of eleven months. (As per an RTI reply attached with the report of
Mr. Alva).
If a child is sent to jail without a sincere effort having been made to look into the
aspect of his juvenility or otherwise, apart from violation of his all legislated,
recognized, reiterated and formulated rights his very basic right of being recognized a child is violated. All his rights are ancillary to the recognition of the
fact of he being a child and all other rights are bound to be violated if system fails
to adequately and timely recognize this right.
The harm which is caused to a child, when his right of being identified and treated
as a child is violated, cannot be undone by any means. In his report, Mr. Alva has
quoted from the law commission (report -177
th
report on Law relating to arrest,
2001, Page 32) :
“The everyday situation is that wherever the arrest is
found to be illegal, unwarranted or unjustified, the man is
set free, may be sometimes unconditionally. But that is all
that happens. Nothing happens to the police officer who
has unlawfully or unjustifiably interfered with the liberty
of a citizen and/or has wrongfully confined the person,
whether in police custody or elsewhere. This position has
indeed emboldened some police officers to abuse their
position and harass citizens for various oblique reasons.
They feel secure in their knowledge that any wrongful or
illegal act on their behalf would not affect them, their
careers or their prospects in service; all that would happen
is, the person arrested would be let off by the courts.”
The situations being so with the adults where do the children stand, who
otherwise because of the age and status are incapable to defend their rights?
Often these children have to suffer incarceration for a long time till the help actually reaches them. A recent UN report of Working group on Human Rights in
India released in December 2011 has also found that children’s ages are often
falsified and they are tried in adult courts or sent to adult prisons.
In such cases, the family members have to rush to all corners to get their children
recognized as children and then declared so legally. Of course legal remedies are
available to get the mistake or lapse corrected but by the time mistakes are
corrected, the child suffers in silence. It has been our experience that the children
who suffer incarceration in Jails acquire contamination and their rehabilitation
becomes difficult. In some cases, children incarcerated in Jails have no body to
take care of them. Families are often poor and illiterate and find it difficult to get
help.
What do the children like the juvenile in the present case do, who do not have a
family to engage a lawyer and to take up the issue of juvenility and fight for it?
The child in this case was aware about his rights as he was aware that there is a
system meant for him as he was dealt with by this system earlier. Many such
children might even not know that they have a right to be treated under a system
created by law only to provide care and protection to them.
There are a few issues which are raised every time a situation like present case
comes up and are then forgotten. It is the duty of the police officer to record the
age of a person the moment he is apprehended and his apprehension memo is
prepared. It has been emphasized time and again that the police officers have a
duty to conduct a preliminary inquiry into the age of the child. Wherever there is
a doubt regarding the age, the Police have to satisfy itself on whether there could
be a possibility of him being a juvenile. This inquiry cannot be a formality. It has been stated by this Board earlier in one of its orders that as per fundamental
principles a juvenile cannot waive his juvenility and so even if a person is saying
that he is a 18 or so and the I.O. feels that he is a juvenile, as has been claimed by
the I.O in this case, the I.O. has to treat the person as a child and has to preferably
produce him in the Board and let the Board take a decision on his juvenility. In
case however such a child is by any reason produced in the Court the I.O. has to
inform the said court that the person being produced by him could possibly be a
child and give this information to the Court in writing.
Issue of misuse of JJ Act by Adults
We have often heard of the concerns on the adults taking a benefit of the Juvenile
Justice System. We do not see much validity in such concerns if every agency
concerned does its duty properly. If the adults are brought to the Board in
doubtful cases, Boards will conduct an age as per the provisions of the Act and
Delhi JJ Rules and they on being found adults are sent to the regular courts as per
law. We do not see any harm in bringing a person where there is a doubt
regarding his age or where he claims juvenility but cannot immediately prove it by
way of a documentary evidence. In case, a person who initially claimed to be a
juvenile, is found to be an adult, he is eventually sent to Adult Court. On the
contrary if a child is sent to the jail because he is not able to prima facie establish
his juvenility and is then brought into the JJ system after wining his claim of being
a juvenile, enormous injustice is caused to the child as he is subjected to the
hardships of criminal justice system and jails, which is strictly prohibited under
law. Superior Courts as well have given us a mandate to be cautious on this count. Every possible effort is required to be done to ensure that adults do not manage
to take benefit of JJ Act and that children do not land up in jails. We are required
to maintain a cautious balance between the two.
We are of the view that a person who says that he is a juvenile should be treated
so initially, after preliminary inquiry be brought before the Board to decide the
juvenility on the basis of physical appearance or documents. To do contrary, has a
risk of children landing up in jails. The Courts have also been guided by the
judgment in Gopinath Ghosh (supra) to be vigilant in cases of young offenders and
to undertake an inquiry on age before proceeding further.
Measures to be taken up
Reminding the Board of its duty under rule 10(h) of Delhi JJ rules of removing the
difficulties in implementation of the Juvenile Justice Act, Mr. Alva has suggested
that the Juvenile Justice Board needs to put in place some guidelines regarding
the issue which has come up in this case and has suggested some measures in this
regard in his report.
Rule 10. Funtions of the Board
The Board shall perform the following functions to achieve the objectives of the
Act, namely:--
(h) take suitable action for dealing with the unforeseen situations that
may arise in the implementation of the Act and remove such difficulties
in the best interest of the juvenile;
We shall also quote here rule 10(e) which speaks thus;(f) pass necessary direction to the district authority and police to create
or provide necessary infrastructure or facilities so that minimum
standards of justice and treatment are maintained in the spirit of the
Act.
The Delhi JJ rules have given power to the Board to pass necessary directions to
the district authority ( i.e. District Child Protection Unit) and the police for
creating necessary infrastructure. It also says that the Board may take necessary
action to deal with unforeseen situations and to take suitable actions to remove
difficulties.
As discussed above the very basis by virtue whereof a person comes under the
jurisdiction of the Board and becomes entitled for the beneficial provisions of the
Act, is the age. The issue of the age, if not handled sensitively and as per law, does
obstruct the implementation of the Act and thus is the need for the Board to take
suitable action.
Declaration of Age under JJ Act is to be True Age
It is seen in this case and several cases as well that have come before us that the
children -- who have been declared juveniles by the Board once -- are taken to the
Jails without first obtaining the record of the age from the Board.
We will, in this regard, refer to the provisions of rule 49 of the Delhi JJ rules which
say that the age when it is declared so becomes the age of the child for the
purposes of the Act.“ 49. Presumption and determination of age.—(1) Where it appears
to a competent authority that person brought before it under any of
the provisions of this Act (otherwise than for the purpose of giving
evidence) is a juvenile or the child, the competent authority shall make
due inquiry so as to the age of that person and for that purpose shall
take such evidence as may be necessary (but not an affidavit) and
shall record a finding whether the person is a juvenile or the child or
not, stating his age as nearly as may be.
(2) No order of a competent authority shall be deemed to have
become invalid merely by any subsequent proof that the person in
respect of whom the order has been made is not a juvenile or the
child, and the age recorded by the competent authority to be the age
of person so brought before it, shall for the purpose of this Act, be
deemed to be the true age of that person.”
Section 49 of the Act speaks of the presumptions which are associated with
determination of age. Sub section 2 of the section says that the age of a child
once declared by a competent authority (Juvenile Justice Board or Child Welfare
Committee) shall remain his age for the purpose of the Act (not merely for the
purpose of the inquiry); if subsequent to declaration of the age of the child some
other document is produced or is brought, the age declared after due inquiry shall
not become invalid. The sub section uses the words ‘for the purpose of the Act’
meaning thereby that the age once declared in an inquiry becomes the age of the
juvenile or the child, which has to be considered for all times to come where an
action is recommended/ contemplated for the child under this Act. It is this sub section that gives the power to the Board, to accept the age once declared by it in
an inquiry, as his age in the subsequent inquiries where he is found involved.
It is despite the existence of this section that the juvenile in the present case had
to suffer the custody in a jail. It is despite the fact that there was an order in
existence which had declared him a juvenile and yet he was treated as an adult. It
is despite the fact that this document of declaration of juvenile unless reversed in
appeal had to be treated as the document of age for all the purposes of JJ Act and
could not be overruled even by discovery or coming up of a subsequent
document. The present case has also raised a question, what if the juvenile in the
present case were declared above 18 years by the Medical Board, which we all
know is only an opinion. Would then the juvenile have remained an adult and
faced the trial in the adult court?
Having understood that the order of declaration of age by the competent
authority is final, how do we ensure that all the person who are or may at any
point of time to come, have to deal with the age of the child are made aware of or
can access as per need this document age of the juvenile. It is for this reason that
it has been mandatory under Rules for Board to supply a copy of age declaration
to the juvenile or his guardian.
Issue of Maintenance of Data on Age of Juveniles
We now take up the argument advanced by Ld APP, that of inability of police in
having access to the record of the juveniles.It has been argued that no record of age of children is maintained at the police
station and whatever record is maintained is also not accessible to all the police
officers at the Police Station. We will examine the provisions being referred to by
Ld APP.
Section 19 of the JJ Act speaks of removal of record and says that:
(2) The Board shall make an order directing that the relevant records
of such conviction shall be removed after the expiry of the period of
appeal or a reasonable period as prescribed under the rules, as the
case may be
The provision thus is that if the juvenile is found involved in the commission of an
offence, the record of such conviction has to be removed after the prescribed
period. This section compliments the subsection 1 which says that the order of
the conviction shall not become a disqualification for a juvenile. The purpose
attached to the subsection is to provide protection to the juvenile from any
disqualification, which may come in his way because of his conviction in a case.
The right to privacy and confidentiality reads as under;
XI Principle of right to privacy and confidentiality
The juvenile’s or child’s right to privacy and confidentiality shall be
protected by all means and through all stages of the proceedings and care
and protection processes .
The principle says that a child has a right of privacy and confidentiality and this
right is to be protected. We fail to understand as to how these provisions puts a
restriction in maintaining the record of a child’s age. The prohibition and
restriction is aimed at protecting the child from disqualification arising out of conviction or breach of his confidentiality to his disadvantage. If however the
record is to be used for the interest of child, it has to be maintained and shared
and used by the agencies concerned. We are presuming that this record if
maintained shall be only to have the record of the age , for the benefit for the
child or it may be used from preventing an adult from exploiting the juvenile
justice system and not to be used against the interest of the juvenile for any
purpose. This record in any case will be used by the Board or the Court as and
when child is brought to the Board or the court.
It is seen thus that there is nothing under the law which prevents the police from
keeping records of the age of children who are declared so by the Board at least
till such children attain the age of majority. There is again no restriction in using
this record as and when a child comes in their contact the second time.
Further if the order of age is retained by the police station within the jurisdiction
of which the offence was committed and is not shared further, it will be the same
situation as maintaining the record with the Board.
The need therefore is to have the data of age of all the juveniles who are declared
so by the Board during inquiry at one place with access of the same to all the
police stations. In maintaining this record however it will have to be ensured that
this data is not accessed for any purpose except for finding out the possibility of a
juvenile having been dealt by the system earlier and in the interest of the juvenile.
The use of this data however can be restricted through proper rules viz the access
of the same should be to the S.H.O.s and the J.W.Os of the P.S. In every case of
apprehension of a person who tells his age upto 21 years, the I.O. would
necessarily ask the J.W.O. or the I.O. to check the data and to find if the person had ever been involved in the commission of an offence and if so, what was his
age declared by the Board in that involvement.
This shall be for the juveniles who are declared juveniles and are apprehended
again in other cases. There are however many cases where the juveniles are taken
to the court do not have a previous involvement.
Mr. Alva has pointed out in his report the steps which if taken by the police in
every case of disputed age, will help them in handling the issue of age properly
and without a hitch we say that if this is done a check may also be put on the
misuse of the provisions of the Act by the Adults, which has often remained a
concern of the various agencies dealing with these children and the adult
offenders.
Role of Special Juvenile Police Unit
While we discuss about maintenance of data on age, it’s sharing and accessibility
to the other police officers, the principal agency which has to play a crucial role is
Special Juvenile Police Unit. Special Juvenile Police Units have been established in
all the districts with requisite staff and training. These District levels units are
required to be coordinating with all the police stations in their jurisdiction and to
function under supervision the Nodal In-charge of Special Juvenile Police Unit at
Nanakpura headed by a Joint Commissioner of Police. We are also aware that
Department of Women & Child Development is now set to appoint two paid
social workers to the district SPJUS. It comes within the functions of SJPUs to put
in place a system of coordination between all the police stations on their dealings
with the children.We are passing some directions immediately, but a concrete and well thought
scheme needs to be evolved by the Special Juvenile Police Unit to address the
concern being discussed and dealt with here.
Ld. Amicus has explained in great detail the need of introducing “Age Memo” on
the line of “Arrest Memo” which was evolved in DK Basu case. Though we may
agree to the need of such “Age Memo” to be put in place in cases involving young
offenders, we are not the competent to pass any order in that respect.
We are, however, of the view that following precautions if taken by the police in
dealing with the issue of the age prima facie will help in ensuring that the
juveniles are not sent to jails.
1. Inquiry on age immediately on apprehension/ arrest of young
offenders: As and when a young person is apprehended /
arrested and if he apparently looks or claims that he is below 18
years of age, it should be presumed that he is a juvenile and the
J.W.O. should be immediately called and consulted and a proper
inquiry specific on age be carried out immediately.
2. The I.O. should record the age of the person apprehended as
told by the person him/herself or by parents/ relative or on the
basis of any document which is shown to him/her by the person
or family members.
3. IO shall however simultaneously , based on his own inquiry,
record his own opinion on the age if he feels that the person
before him is telling his age on the higher side as the children may sometimes do as has been claimed by the I.O in the present
case.
A preliminary inquiry should be taken in every case where the
child tells his age upto 21 years {Gopi Nath Ghosh (supra)}
In conducting the inquiry the :
o I.O. shall ask the person if he has been a part of formal
schooling at any point of and if the child answers in
affirmative the I.O. should verify the record of such school
at earliest.
o If the parents of the person are available this inquiry
should be made from them. The I.O. should ask the
parents if they had got the date of birth of the child
registered with the MCD or gram pradhan etc as provided
under law and take the answers/ documents on record.
o Where no such document is found immediately and the
I.O. has reasonable grounds believe that such document
might be existing he shall produce such person in Board
and seek time for obtaining these documents.
o A preliminary inquiry can be made from the parents of
such person about the time of their marriage and the
details of how many children do the parents have and
after how long of the marriage were these children born.o In addition to above an inquiry on previous involvement of
the juvenile shall necessarily be made and the effort to
find if the juvenile could possibly be declared a child
should also be made. For this the data as aforesaid should
be maintained.
The inquiry conducted in each case shall be recorded in
writing and shall form a part on investigation report in
each case where a child claims his age upto 21 years
irrespective of whether he is found a juvenile or an adult.
Special Juvenile Police Unit shall set up a mechanism in place for
necessary coordination and assistance to police officer who may
require such information.
An advisory/ Circular/ Standing Order, as may be appropriate, be
prepared by the Special Juvenile Police Unit for the assistance of
Police officer/ IOs/ JWOs for the purpose of assistance on
matters related to age inquiry within 3 months from receipt of
this order. Such advisory/ Circular/ Standing Order shall also
include the procedure which needs to be followed by the IOs in
cases of transfer of cases from adult courts to JJB and vise versa.
In each case, where a police officer arrested a person as adult
and later on such person turns out to be a juvenile, DCP concerned shall undertake an inquiry to satisfy him/her that a
deliberate lapse has not been committed.
We put on record our appreciation for the assistance provided by Ld.
Amicus Mr. Rohan Alva to the Board in dealing with this issue and this
case as well, and for presenting an excellent report on this subject,
which we find of great academic satisfaction.
A copy of this order along with the report of Mr. Rohan Alva, Ld.
Amicus be sent to Nodal In charge of SJPU , P.S. Nanakpura for their
response.
Sd/ Sd/
M PM/JJB-1
16-03-2012
-TYPED TRUE COPY-
Print Page
106/JJB-1/ASB/Dasti.20.03.12
Ms. ANURADHA SHUKLA BHARDWAJ
Principal Magistrate
Juvenile Justice Board-1,
Sewa Kutir Complex,
Kingsway Camp, Delhi-110009
BEFORE THE JUVENILE JUSTICE BOARD-I SEWA KUTIR COMPLEX: KINGSWAY
CAMP: PRESIDED OVER BY MS ANURADHA SHUKLA BHARDWAJ PRINCIPAL
MAGISTRATE
FIR NO 269 OF 2011
PS KOTWALI
STATE VERSUS
ORDER
Pr. Ld. APP for the State
Mr. Rohan Alva Amicus Curie
The juvenile has not been produced today as he has his examination as per the
report filed by the superintendent- Place of Safety.This orders deals with the issue of a juvenile having been sent to jail in year 2011
in spite of him having been declared a juvenile being 15 years of age in year 2009
by this Board. This is not an isolated case on this issue.
Facts of the Case
Juvenile
the order of Ld MM concerned, holding him to be a juvenile on the basis of the
medical examination conducted on 08.12.2011, after he was found by the
Medical Board to be between 17-18 years of age. He was “arrested” in this case
on 07.12.2011 and was produced before regular criminal court, from where he
was sent to Central Jail in judicial custody. His age was shown by the I.O. as 18
years. Later on he was found to be juvenile and that is how juvenile came before
us.
This child was before us two years back in a case of PS Kotwali in F.I.R. no 262 of
2009. He was ten medically examined for the assessment of his age by the order
of the Board, as he did not have any other documentary proof of his age and was
found to be between 15-16 years of age as per the opinion of the Medical Board,
which has examined him on 06.11.09 and was accordingly declared to be juvenile.
In 2011, the same Police Station i.e. P.S. Kotwali treated him as an adult and
caused him to go to jail.
The IO in present case also had a doubt regarding the age of the boy and had got
him medically examined for age on the very next day i.e. 08.12.2011 without any
directions or order from the court where he was produced. Juvenile has told us
that he himself had told the I.O. that he is a juvenile and this has been the claim of juvenile since the day he was brought before us. Though now the child has
come under Juvenile Justice Administration System but he had to suffer in Jail
till 24.01.2012 for one month and seventeen days precisely. Because such misshappenings are routine, we are compelled to take judicial notice of it and to find
out how the system can be put in place to avoid reoccurrence of such
unfortunate incidents.
There is no doubt that injustice has been done to the juvenile. Board receives
children from Tihar Jail on a regular basis. Children suffer the incarceration in jails
meant for adults and endure suffering and trauma, till some one comes to their
rescue. What is striking in this case is the fact that the case of year 2009 and the
instant case, both are from same Police Station. This case, as well as other cases
of similar nature, suggest that something is missing in system and such violations
are, primarily, happening due to absence of an effective system of coordination
and linkages and also due to casualness with which young offenders are being
dealt with.
Inquiry into the Lapse
We vide order dated 24.01.2012 had asked the I.O. to give an explanation on
what steps were taken to inquire about the age of juvenile at the time of
apprehension. It does not seem believable that the juvenile would not have
informed the police that he was a juvenile of 15-16 years of age two years back and had stayed at Prayas Observation Home; a home meant for the juveniles in
conflict with law who are between 12 to 16 years of age.
The S.H.O. in his explanation given to the Board has said that the juvenile himself
had told the I.O. that he was 18 years old but since he was looking like 17-18
years old so the I.O. himself had got the boy examined medically on 08.12.2011.
The J.W.O. has also filed a report and has said that the child was medically
examined on 08.12.2011 itself, but the report of the medical examination was
received only on 21.01.2012, the delay occasioned as the process of declaration
of age took its own time.
It is stated in the report of the S.H.O. that the staff of the concerned Government
hospital refused to give the report to the I.O. and so the I.O had to formally move
an application in the Court asking for a direction to get the child medically
examined, for which application was filed on 12.01.2012 and then only on
21.01.12 IO got the Medical Board report.
None of the reports however say that any inquiry was made from the child
regarding his previous involvement; which if would have done could have helped
I.O. in obtaining the proof of age of the boy in his previous case from the Board.
This is admitted by the S.H.O., who is also the chief Juvenile welfare officer of the
Police Station that the boy did looked like 17-18 years old. He however claims that
the boy was taken to the Adult Court as he himself had told his age as 18 years.
Apparently the I.O. had a doubt that the boy could possibly be a juvenile but even
then he chose to produce him before adult court. Relevantly the Circular No. 68 of
Delhi Police, dealing with the manner in which juveniles are to be dealt with,
requires a person with doubtful age to be given benefit and produced before JJB. Thus IO, if he had doubt regarding age of juvenile, had a duty to produce the child
in the Board rather than having taken him to the Court; and even if he had taken
the child to the court, he had a duty to inform the Court that he has a doubt
about his age and that’s why he has got the child medically examined. If this were
done, the court concerned itself would have taken appropriate steps to decide
where the child should be sent, in the jail or in the Observation Home.
It is only when he failed in getting a report from the Hospital that he applied to
the Court for an order to get the child medically examined. The order of the Court
dated 12.01.2012 said that the boy be medically examined within four days. The
report was filed in the court on 21.01.2012 and the juvenile was sent to the Board
thereafter. The order of the Court reads that the juvenile was medically examined
on 08.12.2011, which shows that the boy was in fact medically examined before
the application for getting him medically examined was formally filed in the court
on 12.01.2012.
The child on his first date before us told that when his co-juvenile was being
produced in the Board he had requested the I.O. to produce him also in the
Board, yet he was made to sit in the police vehicle, and was told that he will be
produced in the adult court.
There are many “ifs” which if they had happened or had not happened the child
would not have suffered the agony of being sent to adult court and to jail.
If the I.O. had believed the juvenile that he had a previous case and would
have made an inquiry;
If the age of the juvenile was verified from the Board from his previous
case;If the I.O. had believed what he himself felt (which is shown by the fact that
he got the child medically examined the very next day), and had produced
the boy in the Board;
If only the court was told on first date of production that the boy could be a
juvenile;
If the magistrate had taken note of the age of the juvenile i.e. of 18 years
and had followed the guidelines in the case of Gopi Nath Ghosh versus
State of W.B. AIR 1984 SC 237 and had made an inquiry from the juvenile;
Or if the IO had told that he has got the child medically examined and that
the court should call for a report;
(The court in aforesaid two cases could possibly have sent the boy to OHB
instead of sending him to the jail);
If the doctors concerned had prepared the report and given it in time to the
I.O.;
And above all if only there was a mechanism in place which could have
helped the I.O. in knowing that there was a document in existence by which
the child has been declared a juvenile.
While this was being discussed Ld prosecutor put forward the argument from the
side of the I.O. asserting that no records of age of the juveniles are maintained at
the police stations and that there is in fact a prohibition on retaining and using
the records of the juveniles after the disposal of the case and the period of the
appeal. Referring to various provisions including section 19 of the JJ Act and the
principles related to confidentiality etc, it was argued that since no record of the
age of juveniles is maintained at the police station and whatever record is kept is
not accessible to anyone except the JWOs and the S.H.O.s, the I.O.s practically have no means to find out if the person before them could possibly be a juvenile,
declared so by a Court or Board in any previous involvements. We shall take up
the issue later in the order.
Report Filed by the Amicus
Mr. Rohan Alva was appointed as amicus to assist us in finding a solution to this
problem by interacting with both the juveniles in this case. He has filed a detailed
report on the “Procedure to be adopted to ensure that juveniles are not sent to
jail”.
In his report Mr. Alva has raised a concern about the casual manner in which the
issue of age is dealt with by the Investigating Officers ignorantly, negligently and
sometimes even intentionally, and the child in the process is made to suffer the
hardships of the Criminal Justice System away from the care and protection of
system -- especially enacted for him -- that is the Juvenile Justice System.
Constitutional Safeguards
Referring to the Constitutional provisions -- of Articles 15(3) -entitlement of
special treatment being children; Article 39(e)- right to protection against abuse;
Article 39(f) right to develop in a healthy manner and in conditions of freedom
and dignity and protection of childhood against exploitation and against moral
and material abandonment -- Mr. Alva submitted that how State which through
its Constitution, Enactments and National Policies has shown its commitment to
provide care and protection to its children, is , in practice, failing to act upon the well thought over and worded provisions because of the violations of the kinds
under consideration in the present case.
Safeguards in Domestic Laws, Rules and Policies
Juvenile Justice (Care & Protection of Children) Act 2000 was amended in year
2006. One significant amendment was in Section 10 titled “Apprehension of
Juvenile in Conflict with Law”. This section was amended to include a proviso to it
to the effect that “in no case a juvenile in conflict with law shall be placed in a
police lock up or lodged in jail”. It was done to stop the practice of juveniles
being kept in jails on the ground that sufficient number of observation homes
were not available. Law in 2006 responded to this crisis by way of an amendment.
Principle VI of Delhi JJ rules 2009 very specifically says that a child shall not be put
in confinement in jails. The emphasis no doubt was that no child whatever be the
circumstances shall be sent to a jail.
VI. Principle of Safety (no harm, no abuse, no neglect, no exploitation and
no maltreatment):
(a) At all stages, from the initial contact till such time he remains in contact
with the care and protection system, and thereafter, the juvenile or
child or juvenile in conflict with law shall not be subjected to any harm,
abuse, neglect, maltreatment, corporal punishment or solitary or
otherwise any confinement in jails and extreme care shall be taken to
avoid any harm to the sensitivity of the juvenile or the child.Further, the Government of India in the ‘National Plan of Action for Children
(2005)’ specifically addresses the issue of ‘Children in Conflict with Law’ by
enunciating certain goals, objectives and strategies. It recognizes that one of the
strategies to achieve the objectives enunciated therein is to ensure that- no child
under any circumstances should be lodged in prison.
Safeguards provided under International Law
The Universal Declaration of Human Rights (UDHR), the foundation of Human
Rights Law, to which India is a signatory, protects the right of juveniles of not to
be sent to jails and includes the right of those who may not be aware that they
are juveniles to not be sent to jail without a proper preliminary inquiry on age.
In the case of juveniles, the responsibility of the police is accentuated and they
are responsible for ensuring that juvenile do not suffer deleteriously when they
come into contact with the legal system.
A perusal of the International Covenant on Civil and Political Rights 1996 (ICCPR)
reveals that several of its provisions require State Parties to provide for protection
of citizens from arbitrary forms of arrest and also specifically protect the interest
of juveniles. Article 10.2(b) of the document provides that :
“Accused juvenile persons shall be separated from adults and
brought as speedily as possible for adjudication.”
Article 10.3 provides that
“The penitentiary system shall comprise treatment of prisoners the
essential aim of which shall be their reformation and social rehabilitation. Juvenile offenders shall be segregated from adults
and be accorded treatment appropriate to their age and legal
status.”
The issue of treatment of young offenders whose age may not be known has been
addressed in “Guidelines for Action on Children in the Criminal Justice System”
in Resolution dated 21.07.1997 by the Economic and Social Council and it
observes as below:
“B. Specific Targets
12. States could ensure the effectiveness of their birth registration
programmes. In those instances where the age of the child involved
in the justice system is unknown, measures should be taken to
ensure that the true age of a child is ascertained by independent and
objective assessment.”
It is stated by Mr. Alva in his report that –
“……in the treatment of juveniles a very careful and vigilant
approach has to be adopted to ensure that the apprehension of
juveniles is not effected in a mechanical manner; under no
circumstances is a child to be sent to jail; and, if due to negligence,
arbitrariness or mala fide on the part of the police officer, a juvenile
is arrested and sent to jail, it would amount to a cruel, inhuman,
and an oppressive action which would be wholly destructive of the
juvenile’s inalienable right against being sent to jail. Therefore, to take these requirements to their logical conclusion, it would be
correct to say that even in cases in which a juvenile may appear to
be an adult, vigilance at the arresting level itself is required to
ensure that a juvenile is not routinely dumped into a jail.”
Supreme Court on “Children in Jail”
Hon’ble Supreme Court has been dealing with this issue since 1980s and through
several orders and judgments, significant reforms and improvements have been
introduced and several legal and procedural safeguards have been provided.
Way back in 1983, Hon’ble Supreme Court in Sanjay Suri Versus Delhi
Administration 1988 AIR SC 414 had looked into the issue of children being sent
to jails. It is an irony that even after 29 years, we have a situation that children
are still found in Jails. In Sanjay Suri (Supra), Hon’ble Supreme Court in its order
dated 31.10.1983 had observed that:
“…We would also like to know as what is the procedure being
followed by the Courts of Metropolitan Magistrates in Delhi when
a young accused is produced before them for the purpose of
ascertaining whether he is a child or not within the meaning of
the Children’s Act and if he is not a child and is sent to judicial
custody then what is the procedure being followed by the
Superintendent of the Tihar Jail for determining whether he is
juvenile within the meaning of Jail Manual where a juvenile is
defined as a prisoner who has not attained the age of 18 years. We are anxious to ensure that no child within the meaning of the
Children’s Act is sent to the jail…”
As a result of the aforesaid order in Sanjay Suri (supra) case that a separate
juvenile ward was created in Tihar Jail. It was made mandatory for the
Magistrates to mention the age of the accused on the custody warrant and it was
made clear that warrant without age were not to be respected by the Jails.
Then in year 1983 itself Hon’ble Supreme Court in Gopinath Ghosh Versus State
of West Bengal, dealing with the similar issue, issued a practice direction for
magistrates:
“ Whenever a case is brought before the Magistrate and the
accused appears to be aged 21 years or below, before proceeding
with the trial or under taking an inquiry, an inquiry must be made
about the age of the accused on the date of occurrence. This
sought to be made so where special Acts dealing with juvenile
delinquents are in force. If necessary, the Magistrate may refer
the accused to the medical-Board or the Civil Surgeon, as the
case may be, for obtaining credit worthy evidence about age. The
magistrate may as well call upon accused also to lead evidence
about his age. Thereafter, the learned Magistrate may proceed in
accordance with law. This procedure, if properly followed, would
avoid, a journey upto the apex court, and the return journey to
the gross-root court.”Then again in year 1986, Hon’ble Supreme Court dealt with this issue in case of
Sheela Barse versus Union of India 1986(3) SCC 596 , in which it was observed
that :
“....It is an elementary requirement of any civilised society and it
had been so provided in various statutes concerning children that
children should not be confined to jail because incarceration in jail
has a dehumanising effect and it is harmful to the growth and
development of children. But even so the facts placed before us,
which include the survey made by the Home Ministry and the Social
Welfare Department show that a large number of children below
the age of 16 years are confined in jails in various parts of the
country.”
“……….That is why all the statutes dealing with children provide
that child shall not be kept in jail. Even apart from this statutory
prescription, it is elementary that a jail is hardly a place where a
child should be kept. There can be no doubt that incarceration in
jail would have the effect of dwarfing the development of the child,
exposing him to baneful influences, coarsening his conscience and
alienating him from the society. It is a matter of regret that despite
statutory provisions and frequent exhortations by social scientists,
there are still a large number of children in different jails in the
country as is now evident from the reports of the survey made by
the District Judges pursuant to our order dated 15th April, 1986.
Even where children are accused of offences, they must not be kept
in jails. …”The Hon’ble Supreme Court of India in its judgment in Arnit Das v. State of Bihar,
2000(5) SCC488 had held in the context of The Juvenile Justice Act, 1986 that:
“the purpose of the Act was to create a uniform juvenile justice
system and ensuring that juveniles are not lodged in jails or police
lock-ups. It also held that those who are entrusted with the
responsibility of implementing the Act must show sensitivity and
concern to the juvenile.”
In 2007, Hon’ble Supreme Court while examining the status of implementation of
Juvenile Justuce Act 2000, in Sampura Behrua Versus Union of India took note of
the issue of children in jail again and made following observation in its order
dated 03.01.2007:
“It deserves to be noticed at the very outset that it was more
than 20 years ago that this Court, concerned with the plight
of the children, development of their personality and the
appalling conditions in jails, issued various directions. Even in
the year 1986, this Court expressed regret that despite
statutory provisions and frequent exhortations by social
scientists, large number of children are lodged in number of
jails. It was observed that even if children are accused of
offences, they must not be kept in jails. Rejecting the
argument that there are not enough number of homes or
observation homes or other places where children can be
kept is the reason why they are lodged in jails, in Sheela Barse Vs. Union of India {(1988) 4 SCC 226], this Court
reiterated the earlier decision dated 13th August, 1986
reported in (1986) 3 SCC 632. The Government were again
impressed upon to set up the necessary mechanism, i.e.,
remand homes, observation homes etc. for lodging children.”
In year 2009 Hon’ble Supreme Court in Hari Ram versus State of Rajasthan
2009(13) SCC 211 remarked that the system will not work till the mindset of the
people associated with it changes. It was this Judgment which confirmed the
retrospective effect of the JJ Act and extended the benefit of JJ Act to all those
who were above 16 but below 18 years of age during the time when 1986 Act was
in force. Highlighting the importance of attitudinal change in the minds of duty
bearers, It was held that:
“It would be virtually impossible to achieve the objects of the JJ Act
without there being a complete change in the mindset of those
vested with the authority to enforce the JJ Act.”
We, thus see that it was in 1983 that the Hon’ble Supreme Court had shown its
concern on the manner in which the children were sent to and kept in jails and 28
years later in 2010-2011 we still had 113 children, who were sent to Tihar jail over
a small period of eleven months. (As per an RTI reply attached with the report of
Mr. Alva).
If a child is sent to jail without a sincere effort having been made to look into the
aspect of his juvenility or otherwise, apart from violation of his all legislated,
recognized, reiterated and formulated rights his very basic right of being recognized a child is violated. All his rights are ancillary to the recognition of the
fact of he being a child and all other rights are bound to be violated if system fails
to adequately and timely recognize this right.
The harm which is caused to a child, when his right of being identified and treated
as a child is violated, cannot be undone by any means. In his report, Mr. Alva has
quoted from the law commission (report -177
th
report on Law relating to arrest,
2001, Page 32) :
“The everyday situation is that wherever the arrest is
found to be illegal, unwarranted or unjustified, the man is
set free, may be sometimes unconditionally. But that is all
that happens. Nothing happens to the police officer who
has unlawfully or unjustifiably interfered with the liberty
of a citizen and/or has wrongfully confined the person,
whether in police custody or elsewhere. This position has
indeed emboldened some police officers to abuse their
position and harass citizens for various oblique reasons.
They feel secure in their knowledge that any wrongful or
illegal act on their behalf would not affect them, their
careers or their prospects in service; all that would happen
is, the person arrested would be let off by the courts.”
The situations being so with the adults where do the children stand, who
otherwise because of the age and status are incapable to defend their rights?
Often these children have to suffer incarceration for a long time till the help actually reaches them. A recent UN report of Working group on Human Rights in
India released in December 2011 has also found that children’s ages are often
falsified and they are tried in adult courts or sent to adult prisons.
In such cases, the family members have to rush to all corners to get their children
recognized as children and then declared so legally. Of course legal remedies are
available to get the mistake or lapse corrected but by the time mistakes are
corrected, the child suffers in silence. It has been our experience that the children
who suffer incarceration in Jails acquire contamination and their rehabilitation
becomes difficult. In some cases, children incarcerated in Jails have no body to
take care of them. Families are often poor and illiterate and find it difficult to get
help.
What do the children like the juvenile in the present case do, who do not have a
family to engage a lawyer and to take up the issue of juvenility and fight for it?
The child in this case was aware about his rights as he was aware that there is a
system meant for him as he was dealt with by this system earlier. Many such
children might even not know that they have a right to be treated under a system
created by law only to provide care and protection to them.
There are a few issues which are raised every time a situation like present case
comes up and are then forgotten. It is the duty of the police officer to record the
age of a person the moment he is apprehended and his apprehension memo is
prepared. It has been emphasized time and again that the police officers have a
duty to conduct a preliminary inquiry into the age of the child. Wherever there is
a doubt regarding the age, the Police have to satisfy itself on whether there could
be a possibility of him being a juvenile. This inquiry cannot be a formality. It has been stated by this Board earlier in one of its orders that as per fundamental
principles a juvenile cannot waive his juvenility and so even if a person is saying
that he is a 18 or so and the I.O. feels that he is a juvenile, as has been claimed by
the I.O in this case, the I.O. has to treat the person as a child and has to preferably
produce him in the Board and let the Board take a decision on his juvenility. In
case however such a child is by any reason produced in the Court the I.O. has to
inform the said court that the person being produced by him could possibly be a
child and give this information to the Court in writing.
Issue of misuse of JJ Act by Adults
We have often heard of the concerns on the adults taking a benefit of the Juvenile
Justice System. We do not see much validity in such concerns if every agency
concerned does its duty properly. If the adults are brought to the Board in
doubtful cases, Boards will conduct an age as per the provisions of the Act and
Delhi JJ Rules and they on being found adults are sent to the regular courts as per
law. We do not see any harm in bringing a person where there is a doubt
regarding his age or where he claims juvenility but cannot immediately prove it by
way of a documentary evidence. In case, a person who initially claimed to be a
juvenile, is found to be an adult, he is eventually sent to Adult Court. On the
contrary if a child is sent to the jail because he is not able to prima facie establish
his juvenility and is then brought into the JJ system after wining his claim of being
a juvenile, enormous injustice is caused to the child as he is subjected to the
hardships of criminal justice system and jails, which is strictly prohibited under
law. Superior Courts as well have given us a mandate to be cautious on this count. Every possible effort is required to be done to ensure that adults do not manage
to take benefit of JJ Act and that children do not land up in jails. We are required
to maintain a cautious balance between the two.
We are of the view that a person who says that he is a juvenile should be treated
so initially, after preliminary inquiry be brought before the Board to decide the
juvenility on the basis of physical appearance or documents. To do contrary, has a
risk of children landing up in jails. The Courts have also been guided by the
judgment in Gopinath Ghosh (supra) to be vigilant in cases of young offenders and
to undertake an inquiry on age before proceeding further.
Measures to be taken up
Reminding the Board of its duty under rule 10(h) of Delhi JJ rules of removing the
difficulties in implementation of the Juvenile Justice Act, Mr. Alva has suggested
that the Juvenile Justice Board needs to put in place some guidelines regarding
the issue which has come up in this case and has suggested some measures in this
regard in his report.
Rule 10. Funtions of the Board
The Board shall perform the following functions to achieve the objectives of the
Act, namely:--
(h) take suitable action for dealing with the unforeseen situations that
may arise in the implementation of the Act and remove such difficulties
in the best interest of the juvenile;
We shall also quote here rule 10(e) which speaks thus;(f) pass necessary direction to the district authority and police to create
or provide necessary infrastructure or facilities so that minimum
standards of justice and treatment are maintained in the spirit of the
Act.
The Delhi JJ rules have given power to the Board to pass necessary directions to
the district authority ( i.e. District Child Protection Unit) and the police for
creating necessary infrastructure. It also says that the Board may take necessary
action to deal with unforeseen situations and to take suitable actions to remove
difficulties.
As discussed above the very basis by virtue whereof a person comes under the
jurisdiction of the Board and becomes entitled for the beneficial provisions of the
Act, is the age. The issue of the age, if not handled sensitively and as per law, does
obstruct the implementation of the Act and thus is the need for the Board to take
suitable action.
Declaration of Age under JJ Act is to be True Age
It is seen in this case and several cases as well that have come before us that the
children -- who have been declared juveniles by the Board once -- are taken to the
Jails without first obtaining the record of the age from the Board.
We will, in this regard, refer to the provisions of rule 49 of the Delhi JJ rules which
say that the age when it is declared so becomes the age of the child for the
purposes of the Act.“ 49. Presumption and determination of age.—(1) Where it appears
to a competent authority that person brought before it under any of
the provisions of this Act (otherwise than for the purpose of giving
evidence) is a juvenile or the child, the competent authority shall make
due inquiry so as to the age of that person and for that purpose shall
take such evidence as may be necessary (but not an affidavit) and
shall record a finding whether the person is a juvenile or the child or
not, stating his age as nearly as may be.
(2) No order of a competent authority shall be deemed to have
become invalid merely by any subsequent proof that the person in
respect of whom the order has been made is not a juvenile or the
child, and the age recorded by the competent authority to be the age
of person so brought before it, shall for the purpose of this Act, be
deemed to be the true age of that person.”
Section 49 of the Act speaks of the presumptions which are associated with
determination of age. Sub section 2 of the section says that the age of a child
once declared by a competent authority (Juvenile Justice Board or Child Welfare
Committee) shall remain his age for the purpose of the Act (not merely for the
purpose of the inquiry); if subsequent to declaration of the age of the child some
other document is produced or is brought, the age declared after due inquiry shall
not become invalid. The sub section uses the words ‘for the purpose of the Act’
meaning thereby that the age once declared in an inquiry becomes the age of the
juvenile or the child, which has to be considered for all times to come where an
action is recommended/ contemplated for the child under this Act. It is this sub section that gives the power to the Board, to accept the age once declared by it in
an inquiry, as his age in the subsequent inquiries where he is found involved.
It is despite the existence of this section that the juvenile in the present case had
to suffer the custody in a jail. It is despite the fact that there was an order in
existence which had declared him a juvenile and yet he was treated as an adult. It
is despite the fact that this document of declaration of juvenile unless reversed in
appeal had to be treated as the document of age for all the purposes of JJ Act and
could not be overruled even by discovery or coming up of a subsequent
document. The present case has also raised a question, what if the juvenile in the
present case were declared above 18 years by the Medical Board, which we all
know is only an opinion. Would then the juvenile have remained an adult and
faced the trial in the adult court?
Having understood that the order of declaration of age by the competent
authority is final, how do we ensure that all the person who are or may at any
point of time to come, have to deal with the age of the child are made aware of or
can access as per need this document age of the juvenile. It is for this reason that
it has been mandatory under Rules for Board to supply a copy of age declaration
to the juvenile or his guardian.
Issue of Maintenance of Data on Age of Juveniles
We now take up the argument advanced by Ld APP, that of inability of police in
having access to the record of the juveniles.It has been argued that no record of age of children is maintained at the police
station and whatever record is maintained is also not accessible to all the police
officers at the Police Station. We will examine the provisions being referred to by
Ld APP.
Section 19 of the JJ Act speaks of removal of record and says that:
(2) The Board shall make an order directing that the relevant records
of such conviction shall be removed after the expiry of the period of
appeal or a reasonable period as prescribed under the rules, as the
case may be
The provision thus is that if the juvenile is found involved in the commission of an
offence, the record of such conviction has to be removed after the prescribed
period. This section compliments the subsection 1 which says that the order of
the conviction shall not become a disqualification for a juvenile. The purpose
attached to the subsection is to provide protection to the juvenile from any
disqualification, which may come in his way because of his conviction in a case.
The right to privacy and confidentiality reads as under;
XI Principle of right to privacy and confidentiality
The juvenile’s or child’s right to privacy and confidentiality shall be
protected by all means and through all stages of the proceedings and care
and protection processes .
The principle says that a child has a right of privacy and confidentiality and this
right is to be protected. We fail to understand as to how these provisions puts a
restriction in maintaining the record of a child’s age. The prohibition and
restriction is aimed at protecting the child from disqualification arising out of conviction or breach of his confidentiality to his disadvantage. If however the
record is to be used for the interest of child, it has to be maintained and shared
and used by the agencies concerned. We are presuming that this record if
maintained shall be only to have the record of the age , for the benefit for the
child or it may be used from preventing an adult from exploiting the juvenile
justice system and not to be used against the interest of the juvenile for any
purpose. This record in any case will be used by the Board or the Court as and
when child is brought to the Board or the court.
It is seen thus that there is nothing under the law which prevents the police from
keeping records of the age of children who are declared so by the Board at least
till such children attain the age of majority. There is again no restriction in using
this record as and when a child comes in their contact the second time.
Further if the order of age is retained by the police station within the jurisdiction
of which the offence was committed and is not shared further, it will be the same
situation as maintaining the record with the Board.
The need therefore is to have the data of age of all the juveniles who are declared
so by the Board during inquiry at one place with access of the same to all the
police stations. In maintaining this record however it will have to be ensured that
this data is not accessed for any purpose except for finding out the possibility of a
juvenile having been dealt by the system earlier and in the interest of the juvenile.
The use of this data however can be restricted through proper rules viz the access
of the same should be to the S.H.O.s and the J.W.Os of the P.S. In every case of
apprehension of a person who tells his age upto 21 years, the I.O. would
necessarily ask the J.W.O. or the I.O. to check the data and to find if the person had ever been involved in the commission of an offence and if so, what was his
age declared by the Board in that involvement.
This shall be for the juveniles who are declared juveniles and are apprehended
again in other cases. There are however many cases where the juveniles are taken
to the court do not have a previous involvement.
Mr. Alva has pointed out in his report the steps which if taken by the police in
every case of disputed age, will help them in handling the issue of age properly
and without a hitch we say that if this is done a check may also be put on the
misuse of the provisions of the Act by the Adults, which has often remained a
concern of the various agencies dealing with these children and the adult
offenders.
Role of Special Juvenile Police Unit
While we discuss about maintenance of data on age, it’s sharing and accessibility
to the other police officers, the principal agency which has to play a crucial role is
Special Juvenile Police Unit. Special Juvenile Police Units have been established in
all the districts with requisite staff and training. These District levels units are
required to be coordinating with all the police stations in their jurisdiction and to
function under supervision the Nodal In-charge of Special Juvenile Police Unit at
Nanakpura headed by a Joint Commissioner of Police. We are also aware that
Department of Women & Child Development is now set to appoint two paid
social workers to the district SPJUS. It comes within the functions of SJPUs to put
in place a system of coordination between all the police stations on their dealings
with the children.We are passing some directions immediately, but a concrete and well thought
scheme needs to be evolved by the Special Juvenile Police Unit to address the
concern being discussed and dealt with here.
Ld. Amicus has explained in great detail the need of introducing “Age Memo” on
the line of “Arrest Memo” which was evolved in DK Basu case. Though we may
agree to the need of such “Age Memo” to be put in place in cases involving young
offenders, we are not the competent to pass any order in that respect.
We are, however, of the view that following precautions if taken by the police in
dealing with the issue of the age prima facie will help in ensuring that the
juveniles are not sent to jails.
1. Inquiry on age immediately on apprehension/ arrest of young
offenders: As and when a young person is apprehended /
arrested and if he apparently looks or claims that he is below 18
years of age, it should be presumed that he is a juvenile and the
J.W.O. should be immediately called and consulted and a proper
inquiry specific on age be carried out immediately.
2. The I.O. should record the age of the person apprehended as
told by the person him/herself or by parents/ relative or on the
basis of any document which is shown to him/her by the person
or family members.
3. IO shall however simultaneously , based on his own inquiry,
record his own opinion on the age if he feels that the person
before him is telling his age on the higher side as the children may sometimes do as has been claimed by the I.O in the present
case.
A preliminary inquiry should be taken in every case where the
child tells his age upto 21 years {Gopi Nath Ghosh (supra)}
In conducting the inquiry the :
o I.O. shall ask the person if he has been a part of formal
schooling at any point of and if the child answers in
affirmative the I.O. should verify the record of such school
at earliest.
o If the parents of the person are available this inquiry
should be made from them. The I.O. should ask the
parents if they had got the date of birth of the child
registered with the MCD or gram pradhan etc as provided
under law and take the answers/ documents on record.
o Where no such document is found immediately and the
I.O. has reasonable grounds believe that such document
might be existing he shall produce such person in Board
and seek time for obtaining these documents.
o A preliminary inquiry can be made from the parents of
such person about the time of their marriage and the
details of how many children do the parents have and
after how long of the marriage were these children born.o In addition to above an inquiry on previous involvement of
the juvenile shall necessarily be made and the effort to
find if the juvenile could possibly be declared a child
should also be made. For this the data as aforesaid should
be maintained.
The inquiry conducted in each case shall be recorded in
writing and shall form a part on investigation report in
each case where a child claims his age upto 21 years
irrespective of whether he is found a juvenile or an adult.
Special Juvenile Police Unit shall set up a mechanism in place for
necessary coordination and assistance to police officer who may
require such information.
An advisory/ Circular/ Standing Order, as may be appropriate, be
prepared by the Special Juvenile Police Unit for the assistance of
Police officer/ IOs/ JWOs for the purpose of assistance on
matters related to age inquiry within 3 months from receipt of
this order. Such advisory/ Circular/ Standing Order shall also
include the procedure which needs to be followed by the IOs in
cases of transfer of cases from adult courts to JJB and vise versa.
In each case, where a police officer arrested a person as adult
and later on such person turns out to be a juvenile, DCP concerned shall undertake an inquiry to satisfy him/her that a
deliberate lapse has not been committed.
We put on record our appreciation for the assistance provided by Ld.
Amicus Mr. Rohan Alva to the Board in dealing with this issue and this
case as well, and for presenting an excellent report on this subject,
which we find of great academic satisfaction.
A copy of this order along with the report of Mr. Rohan Alva, Ld.
Amicus be sent to Nodal In charge of SJPU , P.S. Nanakpura for their
response.
Sd/ Sd/
M PM/JJB-1
16-03-2012
-TYPED TRUE COPY-
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