Tuesday, 14 July 2020

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

We, thus, sum up the references by
holding as under:-
Q. (i). Under which provision of law, a
child, who has completed or is above the age
of 16 years and is alleged to have committed
a ‘heinous offence’ can maintain his
application during the pendency of
preliminary assessment by the Board under
Section 15 of the Act of 2015?
A. For the reasons recorded hereinabove, a
child, who has completed or is above the age of
16 years and is alleged to have committed a
‘heinous offence’ can maintain his application for
release on bail under Section 12 of the Act of
2015 during the pendency of preliminary
assessment by the Board under Section 15 of the
Act of 2015.
Q. (ii). Under which provision of law, a
child, who has completed or is above the age

of 16 years and is alleged to have committed
a ‘heinous offence’ can maintain his
application for release on bail after the
transfer of his case to the Children’s Court
for trial by the Board ?
A. For the reasons recorded hereinabove, a
child, who has completed or is above the age of
16 years and is alleged to have committed a
‘heinous offence’ can maintain his application for
release on bail under Section 12 of the Act of
2015 after the transfer of his case to the
Children’s Court.
Q. (iii). Whether the powers conferred
on the Board in the matter of bail to a
person, who is apparently a child alleged to
be in conflict with law are also available to
the Children’s Court ?
A. In view of clear, unambiguous and specific
stipulation in Section 8(2) of the Act of 2015,
which provides that the powers conferred on the
Board under the Act may also be exercised by the

High Court and the Children’s Court in the matter
of grant of bail to a person, who is apparently a
child and is alleged to have committed a bailable
or non-bailable offence, the powers conferred on
the Board under the Act of 2015 are also
available to the Children’s Court and the High
Court.
Q. (iv). Whether seriousness of the
offence alleged is a ground for rejecting the
bail in case of a child in conflict with law?.
A. Seriousness of the offence alleged cannot
be made a ground for rejecting bail under the Act
of 2015.
Q. (v). Whether an appeal under Section
101(5) of the Act of 2015 or an application
under Section 439 of the CrPC would be
maintainable before the High Court by any
person aggrieved by the order granting or
rejecting bail by the Children’s Court?
A. Against an order granting or refusing bail
passed by the Children’s Court, no application for

bail or cancellation of bail under Section 439(1)
or 439(2) of the CrPC shall lie before the High
Court and against such an order only an appeal
under Section 101(5) of the Act of 2015 would
be maintainable. The ‘phrase’ “in accordance with
the procedure specified in the Code of Criminal
Procedure” does not allude to application of the
entire CrPC to the Act of 2015. The said
reference to the CrPC in Section 101(5) of the
Act of 2015 only means that the procedure, and
not the substantive Sections, prescribed under
Chapter XXIX shall apply to the appeal that could
be filed under the said Section. To clarify further,
the appeal, in terms of Section 101(5) has to be
considered on the basis of material available on
the record, i.e., material produced before the
Board under Section 13 of the Act of 2015 and
considerations arrived at in terms of Section 12
of the Act of 2015 for the purpose of grant of
bail and not the considerations of grant of bail in
terms of Sections 437, 438 and 439 of the CrPC.

The reference in Section 101(5) to “procedure
specified in the Code of Criminal Procedure” does
not enlarge the scope of sub-sections to create a
substantive right in terms of Section 439 of the
CrPC in Section 101(5) of the Act of 2015.
Q. (vi). What is the scope of Section
19(1)(i) of the Act of 2015 in connection
with the trial of a child as an adult? Whether
the provisions of Section 19 of the Act of
2015 are mandatory or the Children’s Court
has to compulsorily follow the
recommendations of the Board made under
Section 15 read with Section 18(3) of the
Act of 2015 ?
A. Upon a case of a child having been
transferred to the Children’s Court, a duty has
been cast upon the Children’s Court to further
decide about the suitability of the child to be tried
as an adult. The words used in Section 19(1)(i)
and 19(1)(ii) of the Act of 2015 give two options
to the Children’s Court. First, to try the

transferred child as an adult and second not to
deal with child as an adult. The Children’s Court is
required to record its reason while arriving at a
conclusion whether the child should be treated as
child or an adult in view of Rule 13 (6) of the
Rules. In case, the Children’s Court decides to
deal with child as a child it has to conduct an
inquiry as a Board following the procedures for
trial of a summons case in accordance with the
provisions of Section 18 as would appear from
the words used in Section 19(1)(i) of the Act of
2015. In case, it decides to try the child as an
adult, it shall follow the procedure as prescribed
by the CrPC for the purpose of trial by Sessions
Court and pass appropriate orders after trial
without prejudice to the provisions of Sections 19
and 21 of the Act of 2015 considering special
‘needs of the child’ the tenets of ‘fair trial’ and
maintaining a ‘child friendly’ atmosphere as
provided under Section 19(1)(i) of the Act of
2015.

The provisions of Section 19(1) of the Act
of 2015 are mandatory. The Children’s Court
cannot dispense with the requirement of deciding
as to whether there is need to try the transferred
child as an adult or to deal with the transferred
child as a child.
Q. (vii). What is the scope of application
of the provisions of CrPC after the Board
transfers the trial of the case to the
Children’s Court having jurisdiction to try
such offences and the Children’s Court
decides that there is a need for trial of the
child as an adult?
A. The procedure followed by the Children’s
Court for trial of a child as an adult would be of a
warrant case and the proceedings in Chapter
XVIII prescribed under Sections 225 to 237 of
the CrPC, which deal with warrant cases by a
Court of Sessions only would be applicable while
trying a child as an adult, subject to exceptions
indicated under the Act of 2015.

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.2117 of 2019

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


CORAM: MR. JUSTICE ASHWANI KUMAR SINGH
and  MR. JUSTICE BIRENDRA KUMAR

(Per: MR. JUSTICE ASHWANI KUMAR SINGH)
Date :01-10-2019

In the aforementioned appeals, preferred under
Section 101(5) of the Juvenile Justice (Care and Protection
of Children) Act, 2015 (for short ‘the Act of 2015’), the
appellants have challenged the order passed by the
Children’s Court whereby their respective applications for bail
have been rejected in respect of cases in which they have
been made accused.
2. Since the facts of all the appeals are not
relevant, as they have been referred to the Division Bench
for the limited purpose, the facts are being extracted from
Cr. Appeal (SJ) No. 2117 of 2019.
3. The appellant in Cr. Appeal (SJ) No. 2117
of 2019 has been made accused in Buxar (Town) P. S. Case
No. 236 of 2018 dated 08.05.2018 registered inter alia
under Section 302 of the Indian Penal Code. He was taken
into custody on 09.05.2018 and was produced before the
Juvenile Justice Board (for short ‘Board’), Buxar. The Board,
in exercise of powers conferred under Section 94 of the Act
of 2015 determined his age to be 17 years, 2 months and
20 days on the date of commission of the offence. Since the
offence alleged to have been committed by the appellant is
heinous one and he had completed the age of 16 years on
the date of commission of the offence, the Board conducted
a preliminary assessment with regard to his mental and
physical capacity to commit such offence, ability to
understand the consequences of the offence and the
circumstances in which he had allegedly committed the
offence and passed an order that there is a need for trial of
the said child as an adult in accordance with the provisions
enumerated in Section 18(2) of the Act of 2015 vide order
dated 12.10.2018.
4. The appellant moved an application for

bail before the Children’s Court, Buxar for grant of bail in
Buxar (Town) P. S. Case No. 236 of 2018, which was
rejected vide order dated 11.12.2018.
5. Being aggrieved by the order passed by
the Children’s Court, the appellant filed an application for
bail before this Court under Section 439 of the Code of
Criminal Procedure, 1973 (for short ‘CrPC’) vide Cr. Misc.
No. 7470 of 2019.
6. The aforesaid Cr. Misc. No. 7470 of 2019
was dismissed as withdrawn with liberty to the appellant to
file appropriate application before the appropriate court vide
order dated 23.04.2019 as the counsel for the appellant
sought leave to withdraw the application on the ground of
juvenility of the appellant.
7. The said order dated 23.04.2019 is set
out hereinbelow :-
23.04.2019 “Heard.
Counsel for the petitioner seeks
permission to withdraw this application as
the petitioner is said to be juvenile.
Permission is granted.
Accordingly, this application filed in

connection with Buxar (T) P.S. Case no.
236 of 2018 is dismissed as withdrawn
with liberty to the petitioner to make
appropriate application before the
appropriate court.”
8. Thereafter, the appellant filed the instant
appeal under Section 101(5) of the Act of 2015 challenging
the order dated 11.12.2018 passed by the Children’s Court,
Buxar whereby his application for grant of bail was rejected.
9. Learned Single Judge while hearing the
appeal doubted maintainability of the appeal against the
order of the Children’s Court. After consideration of various
provisions of the Act of 2015, learned Single Judge framed
three questions and desired the same to be answered by a
Division Bench.
10. The operative part of the order dated
09.07.2019 whereby the learned Single Judge has referred
the case to Division Bench is set out hereinbelow :-
“14. After having been declared child in
conflict with law even relating to Buxar (T)
P. S. Case No.235 of 2018, after rejection
of prayer by the Children Court, the same

has been challenged through Criminal
Miscellaneous. Once the prayer of an
accused has been entertained by the Coordinate
Bench under Criminal
Miscellaneous, then in that circumstance,
whether an appeal in terms of Section
101(5) of the Act would be entertainable
while enjoying the same status. The
conflicting stand coupled with the order
dated 05.02.2019 passed under Cr.Misc.
No.4848 of 2019 gives an impression that
the issue in hand needs authoritative
pronouncement as, with great respect to
the esteemed brother, I did not agree. So,
the matter is to be considered by the
Division Bench and for that, the following
points are being formulated:-
a) Whether the child in conflict
with law falling in between 16 to 18
years should be acknowledged, dealt
with independently relating to
serious offence, heinous offences.
b) Whether the opportunity in
accordance with Section 12 of the
Act identifying the Board to pass an
appropriate order whenever child in
conflict with law is produced
regarding bail matter, could also
include the Children Court.
c) Whether the procedure so
allowed to be followed in accordance
with Section 19(1) of the Act will
attract the procedure of bail to be
cared under the Act or under the
Code. In the background of presence
of Section(1) as well as Section
101(5) of the Act.
15. Accordingly, office is directed to
place the matter before the Division Bench
after taking permission from Hon’ble the
Chief Justice.”
11. Since the reference was desired to be
resolved by a Division Bench, the same has come up for
consideration before this Court.
12. Subsequently, Cr. Appeal (SJ) Nos.1962
and 1549 of 2019 were filed under Section 101(5) of the Act
of 2015 by the respective appellants challenging the order
passed by the Children’s Court, Sitamarhi whereby their
respective applications for bail were rejected. Those appeals
have also been referred by the learned Single Judge to the

Division Bench to be heard together with Cr. Appeal (SJ) No.
2117 of 2019 as the issues involved are identical.
13. After having examined various statutory
provisions under the Act of 2015 and the CrPC and the
submissions advanced at the Bar in the light of reference
order of the learned Single Judge, following ancillary
questions of immense significance, have emerged and need
to be extensively dealt with :-
(i) Under which provision of law, a
child, who has completed or is above the age of
16 years and is alleged to have committed a
‘heinous offence’ can maintain his application for
release on bail during the pendency of
preliminary assessment by the Board under
Section 15 of the Act of 2015 ?
(ii) Under which provision of law, a
child, who has completed or is above the age of
16 years and is alleged to have committed a
‘heinous offence’ can maintain his application for
release on bail after the transfer of his case to
the Children’s Court for trial by the Board ?
(iii) Whether the powers conferred on
Board in the matter of bail to a person, who is
apparently a child alleged to be in conflict with
law are also available to the Children’s Court ?
(iv) Whether seriousness of the offence
alleged is a ground for rejecting the bail in case
of a child in conflict with law ?
(v) Whether an appeal under Section
101(5) of the Act of 2015 or an application
under Section 439 of the CrPC would be
maintainable before the High Court by any
person aggrieved by the order granting or
rejecting bail by the Children’s Court ?
(vi) What is the scope of Section 19(1)
(i) of the Act of 2015 in connection with the trial
of a child as an adult ? Whether the provisions
of Section 19 of the Act of 2015 are mandatory
or the Children’s Court has to compulsorily
follow the recommendations of the Board made
under Section 15 read with Section 18(3) of the
Act of 2015 ?
(vii) What is the scope of application of
the provisions of CrPC after the Board transfers
the trial of the case to the Children’s Court
having jurisdiction to try such offences and the
Children’s Court decides that there is a need for
trial of the child as an adult ?
14. We have heard Mr. Ajay Kumar Thakur,
Mr. Bachan Jee Ojha and Mr. Uday Kumar, learned
advocates for the appellants, Smt. Usha Kumari and Mr.
Zeyaul Hoda, learned Additional Public Prosecutors for the
State and Mr. Digvijay Kumar Ojha, learned advocate for the
informant of Buxar (Town) P. S. Case No. 236 of 2018.
15. Mr. Ajay Kumar Thakur, learned advocate
appearing for the appellant in Cr. Appeal (SJ) No.1962 of
2019 submitted that seriousness of the offence alleged is not
a ground for rejecting bail in a case of a child in conflict with
law. He argued that there is fundamental difference between
the Criminal Justice System and the Juvenile Justice System.

Under the Juvenile Justice System, emphasis is placed on
restoration and rehabilitation rather than on punitive action.
He contended that while considering an application for bail to
a child in conflict with law, Section 12 of the Act of 2015
needs to be read in consonance with three principles
mentioned in Section 3 of the Act of 2015, i.e., principle of
repatriation and restoration, fresh start and
institutionalization as a measure of last resort. Bail should be
granted to every juvenile as a matter of right and refusal
should be done as an exception only where the grounds for
refusal of bail, as mentioned in Section 12 of the Act of
2015 are fulfilled. He urged that the law, as laid down in
Section 12 of the Act of 2015 is equally applicable in case of
a child, who has completed or is above the age of 16 years
and is alleged to have committed a ‘heinous offence’. He can
maintain his application under Section 12 of the Act of 2015
during the pendency of the preliminary assessment by the
Board under Section 15. He can also maintain his application
for bail under Section 12 of the Act of 2015 before the
Children’s Court after his case is transferred by the Board for
trial as an adult. According to him, in view of the express
provision prescribed under Section 8(2) of the Act of 2015,
the powers conferred on the Board under the Act of 2015
can also be exercised by the High Court and the Children’s
Court. On the basis of the aforesaid submissions, he
canvassed that the powers conferred on Board in the matter
of bail to a person, who is apparently a child alleged to be in
conflict with law are also available to the Children’s Court
and the High Court. He urged that the Act of 2015 does not
contemplate filing of an application for bail under the
provisions of the CrPC. According to him, Section 372 in
Chapter XXIX of the CrPC provides that no appeal shall lie
from any judgment or order of a criminal court except as
provided for by the Code or any other law for the time being
in force. As there is no provision in Chapter XXIX of the
CrPC enabling any person aggrieved by an order granting or
refusing bail by the Children’s Court, no appeal under the
provisions of the CrPC can be filed against any order passed
by the Children’s Court. He argued that any person,
aggrieved by any order including order granting or refusing

bail passed by the Children’s Court, can assail the order by
way of filing statutory appeal before the High Court under
Section 101(5) of the Act of 2015. He contended that a joint
reading of the Sections 19(1)(i) and 19(1)(ii) would make it
clear that the said provisions give option to the Children’s
Court to try the transferred child as an adult or not to deal
with the child as an adult. He submitted that the Children’s
Court is duty bound to decide as to whether or not there is
need for trial of the child in conflict with law, who has been
transferred before it, as an adult. It cannot dispense with its
mandatory duty in this regard.
16. Mr. Bachan Jee Ojha, learned counsel
appearing for the appellant in Cr. Appeal (SJ) No.2117 of
2019 adopting the submissions made by Mr. Thakur
submitted that once a preliminary assessment report has
been received from the Board under Section 15 of the Act of
2015, the Children’s Court is obliged to examine whether or
not there is any need for his trial as an adult in terms of
Section 19(1) of the Act of 2015 and pass appropriate
orders in this regard before proceeding ahead with his trial.

He has strenuously argued that a child in conflict with law
cannot be denied bail solely on the basis of the gravity of the
offence and the embargo in the matter of grant of bail
envisaged under the CrPC. According to him, the provisions
of the CrPC cannot be pressed into service either before the
Board or before the Children’s Court or before the High
Court while dealing with an application for bail on behalf of a
child in conflict with law either in course of inquiry or trial or
appeal.
17. Mr. Uday Kumar, learned counsel
appearing for appellant in Cr. Appeal (SJ) No. 1549 of 2019
has adopted the submissions made by Mr. Thakur, learned
counsel for the appellant in Cr. Appeal (SJ) No.1962 of
2019.
18. Per contra, Smt. Usha Kumari, learned
Additional Public Prosecutor for the State submitted that
seriousness of the offence would certainly be a ground for
rejecting bail in case of a child in conflict with law. She
contended that changes introduced in the Act of 2015 and
transfer of child in conflict with law in the age group of 16 to
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18 years to the Children’s Court; who have allegedly
committed ‘heinous offence’, have been made with a
purpose. They are to be tried in terms of the provisions of
the CrPC and, thus, in their case, while considering bail or
holding trial the provisions of the CrPC would be applicable.
She contended that the bail application on behalf of a child,
who is alleged to have committed a ‘heinous offence’ has to
be filed under the provisions of Section 437 before the
Board and under Section 439 of the CrPC before the
Children’s Court after transfer of his case for trial to the
Children’s Court.
19. Mr. Zeyaul Hoda, learned Additional Public
Prosecutor for the State submitted that once a preliminary
assessment report has been received from the Board under
Section 15 of the Act of 2015, the Children’s Court may
accept the report and proceed further for trial of the child as
an adult or take a decision as to whether there is need for
trial of the child as an adult or not as stipulated under
Sections 19(1)(i) and 19(1)(ii) of the Act of 2015. He
argued that it is not mandatory for the Children’s Court, on
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receipt of preliminary assessment report, to again decide as
to which of the two courses provided by Section 19(1)(i) and
19(1)(ii) is to be adopted.
20. While fully concurring with the views
expressed by the learned Additional Public Prosecutors, Mr.
Digvijay Kumar Ojha, learned advocate appearing for the
informant of Buxar (Town) P. S. Case No. 236 of 2018
submitted that considering the gravity of the problems and
issues involved with the children in the age group of 16 to
18 and, in the aftermath of Nirbhaya rape case, the
legislature introduced several changes in law. As per changes
brought in the Act of 2015, children between age group of
16 to 18 can now be tried as an adult for ‘heinous offences’.
Their bail application has to be differently dealt with and
based on the outcome of the trial, children falling between
the aforesaid age group have to be sentenced accordingly.
Thus, in their case, the principles mentioned in Section 3 of
the Act of 2015 would not be applicable. Their bail
application can be refused on the ground of gravity of the
offence and/or other grounds under the CrPC and their cases
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would not be covered by the law as laid down in Section 12
of the Act of 2015, he contended.
21. Having heard the parties, in order to find
out the answer to the questions to be determined in these
cases, it would be necessary to appreciate the Jurisprudence
of the Juvenile Justice System in India, which led to
enactment of the Act of 2015. It would also be of salience
to look into history, concept and philosophy of the Juvenile
Justice System chronologically.
22. Right from inception, the philosophy
behind the Juvenile Justice System is to reform, rehabilitate
and reintegrate a child in conflict with law and a child in need
of care and protection. The philosophy in dealing with
children committing offence is remarkably different from an
adult committing an offence.
23 The first doctrine in dealing with children
of both the categories is the doctrine of parens patriae. In
the juvenile justice legal system, parens patriae is a doctrine
that allows the State to step-in and serve as a guardian for
children, the mentally ill, the incompetent, the elderly or the
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disabled persons, who are unable to care for themselves. It
refers to the public policy power of the State to intervene
against an absurd or negligent parents, legal guardian or
informal caretaker and to act as parent of any child or
individual who is in need of protection. Normally, the natural
parents and family are expected to take care of their
children, but when they fail the State steps into shoes of the
parents and family to provide the same care and protection
as their own parents and families should have provided for
them.
24. With passage of time, the principle of
parens patriae shifted to the right approach, which respects
the constitutional and procedural rights of a juvenile. A child
in conflict with law should be treated in a manner consistent
with the promotion of the child’s sense of dignity and worth,
which reinforces the child’s respect for the human rights and
fundamental freedoms of others and, which takes into
account the child’s age and the desirability of promoting the
child’s reintegration and the child’s assuming a constructive
role in the society.
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25. In India, the first legislation enacted for
the children in distress is the Apprentices Act, 1850. It
applied to children above the age of ten, and under the age
of 18 years found to have committed petty offences and
vagabonds. Under this Act, the children in distress were to
be trained for trade and commerce. The Preamble of
Apprentices Act, 1850, which explains the intent behind the
enactment is set out hereinbelow:-
“For better enabling children, and
especially orphans and poor children
brought up in public charity, to learn
trades, crafts and employments, by
which, when they came to full age, may
gain a livelihood.”
26. In the above background, it is significant
to refer to the provisions of Indian Penal Code, 1860, i.e.,
Sections 82 and 83. Section 82 of the Indian Penal Code
deems children under 7 years of age incapable of forming an
intent to commit a crime. Section 83 of the Indian Penal
Code exempts child above 7 years of age and under 12, who
has not attained sufficient maturity of understanding to
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judge of the nature and consequences of his conduct on that
occasion from criminal responsibility.
27. Thereafter, Reformatory Schools Act,
1876 and Amendment Act, 1897 were enacted for
delinquent children, which empowered the government to
establish reformatory schools for juvenile delinquents. Under
this Act, provisions were made to keep juveniles in custody
in reformatory schools for a time period of 2 to 7 years, but
after attainment of the age of 18 years, they were not to be
kept in reformatory schools.
28. Another important legislation for children
was the Code of Criminal Procedure, 1898 (for short
‘Code’). Section 29(B) of the Code provided that any person
of 15 years of age, who had committed offence not
punishable with death or transportation for life, would be
tried by a District Magistrate or any Magistrate empowered
under the Reformatory Schools Act, 1897. Thus, the
juvenile delinquents were taken out of the jurisdiction of
ordinary courts in the matter of trial. Section 399 of the
Code provided for confinement in reformatories established
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by the Local Governments as a fit place for confinement
instead of being imprisoned in a criminal jail for offenders
under the age of 15 years and Section 562 of the Code
conferred power upon the Court to release on probation of
good conduct youthful offenders under 21 years of age
under certain conditions instead of sentencing them to
prison. These provisions along with the Reformatory Schools
Act,1897 made a significant change in the juvenile penal
philosophy from punishment to reform and rehabilitation.
29. Thereafter, the recommendations made by
the Indian Jail Committee (1919-1920) suggested that
juvenile prisoners are amenable to reformation and their
detention in prisons is undesirable, for, their simple mind
may be polluted permanently by the atmosphere of Jail life.
A child offender was mainly a product of unfavourable
environment. He was entitled to new opportunities to grow
and live in more congenial conditions. The Committee opined
that juveniles could be reformed by re-education and proper
treatment. It recommended that Borstal institutions should
be established for reformation of juveniles. It also
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recommended for constitution of juvenile courts.
30. Thereafter, under the Juvenile Justice
System in India, firstly the Juvenile Court was established
under Madras Children Act, 1920.
31. After independence of India in 1947, the
Parliament passed the first legislation on children, namely,
The Children’s Act, 1960. This was made applicable in
centrally administered union territories and the States having
no juvenile legislation were made free to adopt it. It was
passed to function as model legislation and for
implementation in union territories. This Act established
separate child welfare courts to handle cases relating to
neglected children. It also created the position of a Probation
Officer to advise and assist the neglected or delinquent
children. In addition, it established separate Children’s Court
for cases related to delinquent juveniles, thereby supporting
the judicial process for delinquent and neglected children.
32. It would be relevant to note here that prior
to the passing of The Children’s Act, 1960, there existed
different Children’s Act in different States. The most
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important aspect of the Children’s Act, 1960 was complete
prohibition of use of police station or jail under any
circumstances for children covered within its purview.
However, at this stage, Juvenile Justice System in India was
not uniform because each State had its own standards,
norms and practices.
33. The necessity of a uniform Children Act
across the Country gave rise to enactment of Juvenile
Justice Act, 1986 (for short ‘the Act of 1986’).
34. The Act of 1986 promoted the best
interest of the juveniles by incorporating the important
provisions of Indian Constitution. The Act of 1986 was
influenced by ‘United Nations Declaration of the Rights
of the Child, 1959’ and ‘United Nations Standard
Minimum Rules for the Administration of Juvenile
Justice (“The Beijing Rules”), 1985’. The detention of
juveniles in police lock-up or jail was abolished by the Act of
1986. It also recommended to establish Juvenile Homes for
the reception of neglected juveniles, Special Homes for
reception of delinquent juveniles and Observation Homes for
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the temporary reception of juveniles during pendency of the
inquiry and trial and Aftercare Homes for the purpose of
taking care of juveniles after discharge from Observation
Homes or Special Homes. The object of the Act of 1986 was
to protect juvenile from criminalization, penalization and
stigmatization. The Act of 1986 repealed various Children’s
Acts enacted in different States and provided a uniform
Juvenile Justice System in India. Boys under the age of 16
and girls under the age of 18 were defined as Juveniles.
35. Noticing various shortcoming in the Act of
1986 when India signed and ratified the ‘United Nations
Convention of Rights of Children’ in December, 1992,
the Act of 1986 was repealed and replaced by The
Juvenile Justice (Care and Protection of Children) Act,
2000 (for short ‘the Act of 2000’), which came into force
from 1st April 2001. The Act of 2000 defined the term
‘juvenile’ as a person who having not completed the age of
18 years. The statement of objects and reasons for the Act
of 2000 specified that it was enacted to bring the operation
of Juvenile Justice System in conformity with Convention
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of Rights of Children and other United Nations
Instruments signed by India. It incorporated the justice as
well as the right approach towards children. It dealt with
juveniles in conflict with law and children in need of care and
protection.
36. The Act of 2000 was amended in 2006.
The Amendment Act, 2006 brought several amendments
in the Principal Act. By the amendment, it was made clear
that crucial date for determination of age of a juvenile in
conflict with law would be the date of commission of offence.
Another important change was insertion of Section 7A, which
provided that a claim of juvenility may be raised before any
court and it shall be recognized at any stage, even after final
disposal of the case. The amended Act further clarified that
under any condition, a juvenile in conflict with law should not
be kept in a police lock-up or jail.
37. The Act of 2000 was again amended in
2011 to address gaps in its implementation and make the
law more child friendly.
38. The brutal gang rape and subsequent
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death of a girl in Delhi (Nirbhaya) on 16th December, 2012
gave rise to a debate that the provisions and system under
the Act of 2000 are ill equipped and needed modification to
tackle the children in the age group of 16 to 18. After a long
debate, the Juvenile Justice Bill was introduced in Lok Sabha
on 8th August, 2014. It was passed by Lok Sabha on 7th
May, 2015 and Rajya Sabha on 22nd December, 2015 and
received the presidential assent on 31st December, 2015 and
the Act of 2015 came into force on 15th January, 2016 with
its publication in the Gazette of India.
39. The Act of 2015 governs children alleged
and found to be in conflict with law and children in need of
care and protection.
40. It has been enacted to fulfill the objects of
the Constitution in clause (3) of Article 15, clauses (e) and
(f) of Article 39, Article 45 and Article 47, which confer
powers and imposes duties on the State to ensure that all
needs of children are met and their basic human rights are
fully protected.
41. It is worth setting out the statement of
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objects and reasons of the Act in full hereinbelow:-
“Statement of Objects and
Reasons.- Article 15 of the Constitution,
inter alia, confers upon the State powers to
make special provision for children. Articles
39(e) and (f), 45 and 47 further makes
the State responsible for ensuring that all
needs of children are met and their basic
human rights are protected.
2. The United Nations Convention
on the Rights of Children, ratified by India
on 11th December, 1992, requires the
State Parties to undertake all appropriate
measures in case of a child alleged as, or
accused of, violating any penal law,
including (a) treatment of the child in a
manner consistent with the promotion of
the child’s sense of dignity and worth (b)
reinforcing the child’s respect for the
human rights and fundamental freedoms of
others (c) taking into account the child’s
age and the desirability of promoting the
child’s reintegration and the child’s
assuming a constructive role in society.
3. The Juvenile Justice (Care and
Protection of Children) Act was enacted in
2000 to provide for the protection of
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children. The Act was amended twice in
2006 and 2011 to address gaps in its
implementation and make the law more
child-friendly. During the course of the
implementation of the Act, several issues
arose such as increasing incidents of abuse
of children in institutions, inadequate
facilities, quality of care and rehabilitation
measures in Homes, high pendency of
cases, delays in adoption due to faulty and
incomplete processing, lack of clarity
regarding roles, responsibilities and
accountability of institutions and,
inadequate provisions to counter offences
against children such as corporal
punishment, sale of children for adoption
purposes, etc. have highlighted the need to
review the existing law.
4. Further, increasing cases of
crimes committed by children in the age
group of 16-18 years in recent years
makes it evident that the current provisions
and system under the Juvenile Justice
(Care and Protection of Children) Act,
2000, are ill equipped to tackle child
offenders in this age group. The data
collected by the National Crime Records
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Bureau establishes that crimes by children
in the age group of 16-18 years have
increased especially in certain categories of
heinous offences.
5. Numerous changes are
required in the existing Juvenile Justice
(Care and Protection of Children) Act,
2000 to address the above mentioned
issues and therefore, it is proposed to
repeal existing Juvenile Justice (Care and
Protection of Children) Act, 2000 and reenact
a comprehensive legislation inter alia
to provide for general principles of care
and protection of children, procedures in
case of children in need of care and
protection and children in conflict with law,
rehabilitation and social re-integration
measures for such children, adoption of
orphan, abandoned and surrendered
children, and offences committed against
children. This legislation would thus ensure
proper care, protection, development,
treatment and social re-integration of
children in difficult circumstance by
adopting a child-friendly approach keeping
in view the best interest of the child in
mind.
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6. The notes on clauses explain in
detail the various provisions contained in
the Bill.
7. This Bill seeks to achieve the
above objectives.”
42. Para-1 of the statement of objects and
reasons is a key to unlock the legislative intent. It refers to
Articles 15, 39(e) and (f), 45 and 47 of the Constitution and
states that such articles confer upon the State the powers to
make special provision for children. It further makes the
State responsible for ensuring that all needs of children are
met and their basic human rights are protected.
43. Para-2 of the statement of objects and
reasons requires the State to undertake all appropriate
measures in case of a child alleged as, or accused of,
violating any penal law, including (a) treatment of the child
in a manner consistent with the promotion of the child’s
sense of dignity and worth; (b) reinforcing the child’s respect
for the human rights and fundamental freedoms of others;
and (c) taking into account the child’s age and the
desirability of promoting the child’s reintegration and the

child’s assuming a constructive role in society.
44. Para-4 of the statement of objects and
reasons is focused towards child in conflict with law in case
of ‘heinous offences’ in the age group of 16-18 years. It
states that existing provisions and system under the Act of
2000 are ill equipped to tackle child offenders in the age
group of 16-18 years as the crimes by children in the said
age group had increased especially in certain categories of
‘heinous offences’.
45. Para-5 of the statement of objects and
reasons while proposing to repeal the existing Act of 2000
and re-enact a comprehensive legislation inter alia to provide
for general principles of care and protection of children,
procedures in case of children in need of care and protection
and children in conflict with law, rehabilitation and social reintegration
measures for such children, re-assures the
legislative intent to ensure proper care, protection,
development, treatment and social re-integration of children
in difficult circumstances by adopting a child friendly
approach keeping in mind the best interest of the child.

46. The opening statements of the Act of
2015 contain the reasons and purposes of the Act. It is
worth setting out the opening statements of the Act of 2015
hereinbelow:-
“An Act to consolidate and amend
the law relating to children alleged and
found to be in conflict with law and children
in need of care and protection by catering
to their basic needs through proper care,
protection, development, treatment, social
re-integration, by adopting a child-friendly
approach in the adjudication and disposal
of matters in the best interest of children
and for their rehabilitation through
processes provided, and institutions and
bodies established, hereinunder and for
matters connected therewith or incidental
thereto.
WHEREAS, the provisions of the
Constitution confer powers and impose
duties, under clause (3) of article 15,
clauses (e) and (f) of article 39, article 45
and article 47, on the State to ensure that
all the needs of children are met and that
their basic human rights are fully

protected;
AND WHEREAS, the Government of
India has acceded on the 11th December,
1992 to the Convention on the Rights of
the Child, adopted by the General
Assembly of United Nations, which has
prescribed a set of standards to be adhered
to by all State parties in securing the best
interest of the child;
AND WHEREAS, it is expedient to
re-enact the Juvenile Justice (Care and
Protection of Children) Act, 2000 (56 of
2000) to make comprehensive provisions
for children alleged and found to be in
conflict with law and children in need of
care and protection, taking into
consideration the standards prescribed in
the Convention on the Rights of the Child,
the United Nations Standard Minimum
Rules for the Administration of Juvenile
Justice, 1985 (the Beijing Rules), the
United Nations Rules for the Protection of
Juveniles Deprived of their Liberty (1990),
the Hague Convention on Protection of
Children and Co-operation in Respect of
Inter-country Adoption (1993), and other

related international instruments.”
47. The purpose of referring to the opening
statements is to indicate that care, protection and treatment
by catering to children alleged and found to be in conflict
with law and children in need of care and protection, their
development, treatment, social re-integration, by adopting a
child friendly approach in adjudication and disposition of
matters in the best interest of children and for their ultimate
rehabilitation continues to be the basis for all purposes and
provisions under the Act.
48. The terms ‘care’, ‘protection’,
‘development’, ‘treatment’ and ‘best interests’ used in the
opening statements have not been defined in the Act of
2015. Hence, they shall have the meanings respectively
assigned to them in any other Act as prescribed in Section
2(61) of the Act of 2015 or in dictionary.
49. The term ‘rehabilitation’ has also not been
defined under the Act of 2015, but has been discussed under
Chapter VII in Section 39 (2) of the Act of 2015 wherein it
is provided that for children in conflict with law, the process

of rehabilitation and social integration shall be undertaken in
the observation homes, if the child is not released on bail or
in special homes or place of safety or fit facility or with a fit
person, if placed there, by the order of the Board.
50. The opening statements further recognize
that a duty is imposed upon the State under clause (3) of
Article 15, clauses (e) and (f) of Article 39, Article 45 and
Article 47 of the Constitution of India to ensure that all
needs of children are met and basic human rights are fully
protected.
51. Clause (3) of Article 15 of the Constitution
confers a discretion upon the State, withing the meaning of
Article 12 of the Constitution, to make special provisions for
women and children. It permits differential treatment in
favour of women and children, using the principle of
reasonable classification, a classification based on sex and
age.
52. Clause (e) of Article 39 of the Directive
Principles of State Policy under Constitution mandates that
State shall direct its policy towards securing that the tender

age of children is not abused.
53. Clause (f) of Article 39 of the Directive
Principles of the Constitution provides that the State shall
direct its policy towards securing that children are given
opportunities and facilities to develop in a healthy manner
and in conditions of freedom and dignity and that childhood
and youth are protected against exploitation and against
moral and material abandonment.
54. Article 45 of the Directive Principles of the
Constitution provides that the State shall endeavour to
provide provision for free and compulsory education for
children upto 6 age.
55. The opening statements further stipulate
that the Government of India has acceded on 11th
December, 1992 to the Convention on the Rights of the
Child adopted by the General Assembly of United Nations,
which has prescribed a set of standards to be adhered to by
all the State parties in securing the best interest of the
child.
56. The opening statements also stipulate that
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numerous changes were required in the existing Act, 2000 to
address issues relating to care and protection of children
and, therefore, the Act of 2000 has been repealed to reenact
a comprehensive legislation for children alleged and
found to be in conflict with law and children in need of care
and protection taking into consideration the standards
prescribed in the Convention on the Rights of the Child, the
United Nations Standard Minimum Rules for the
Administration of Juvenile Justice, 1985 (the Beijing Rules),
the United Nations Rules for the Protection of Juveniles
Deprived of their Liberty (1990), the Hague Convention on
Protection of Children and Co-operation in Respect of Intercountry
Adoption (1993), and other related international
instruments.
57. The basic objectives specified in the
opening statements of the Act of 2015, which may be
regarded as Preamble to it, are sought to be achieved
through all the provisions and by all the institutions and
bodies established under the Act.
58. The opening statements of any enactment
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is the basis to understand the legislative objectives behind
the Act. Every provision in the Act has to be interpreted in
the manner that advances such objectives. In case of any
ambiguity, the Preamble becomes the guiding light.
59. At this stage another important aspect to
be kept in mind is that the Act of 2015 was enacted as the
Parliament intended to tackle child offender committing
‘heinous offences’ in the age group of 16 to 18 years by
legislating new laws which repealed the Act of 2000.
60. Having discussed the history, concept and
philosophy behind the jurisprudence of the Juvenile Justice
System in India and analysed the opening statements of the
Act of 2015, it is now necessary to appreciate what
precisely, the Act of 2015 projects.
61. Some of the important provisions of the
Act of 2015 with which we are concerned, are set out
hereinbelow:-
“Section 1. Short title, extent,
commencement and application.-
(4) Notwithstanding anything
contained in any other law for the time
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being in force, the provisions of this Act
shall apply to all matters concerning
children in need of care and protection and
children in conflict with law, including —
(i) apprehension, detention,
prosecution, penalty or imprisonment,
rehabilitation and social re-integration of
children in conflict with law;
(ii) procedures and decisions or
orders relating to rehabilitation, adoption,
re-integration, and restoration of children
in need of care and protection.
Section 2. Definitions:- In this
Act, unless the context otherwise requires,-
(9) “best interest of child”
means the basis for any decision taken
regarding the child, to ensure fulfilment of
his basic rights and needs, identity, social
well-being and physical, emotional and
intellectual development;
(12) “child” means a person who
has not completed eighteen years of age;
(13) “child in conflict with law”
means a child who is alleged or found to
have committed an offence and who has
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not completed eighteen years of age on the
date of commission of such offence;
(15) “child friendly” means any
behaviour, conduct, practice, process,
attitude, environment or treatment that is
humane, considerate and in the best
interest of the child;
(20) “Children’s Court’’ means a
court established under the Commissions
for Protection of Child Rights Act, 2005 (4
of 2006) or a Special Court under the
Protection of Children from Sexual
Offences Act, 2012 (32 of 2012),
wherever existing and where such courts
have not been designated, the Court of
Sessions having jurisdiction to try offences
under the Act;
(33) “heinous offences” includes
the offences for which the minimum
punishment under the Indian Penal Code
(45 of 1860) or any other law for the time
being in force is imprisonment for seven
years or more;
(35) “juvenile” means a child
below the age of eighteen years;
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(45) “petty offences” includes the
offences for which the maximum
punishment under the Indian Penal Code
(45 of 1860) or any other law for the time
being in force is imprisonment up to three
years;
(54) “serious offences” includes
the offences for which the punishment
under the Indian Penal Code (45 of 1860)
or any other law for the time being in
force, is imprisonment between three to
seven years;
(61) all words and expressions used
but not defined in this Act and defined in
other Acts shall have the meanings
respectively assigned to them in those
Acts.
Section 3. General principles to
be followed in administration of Act.-
The Central Government, the State
Governments, the Board, and other
agencies, as the case may be, while
implementing the provisions of this Act
shall be guided by the following
fundamental principles, namely:–
(i) Principle of presumption of
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innocence: Any child shall be presumed to
be an innocent of any mala fide or criminal
intent up to the age of eighteen years.
(ii) Principle of dignity and
worth: All human beings shall be treated
with equal dignity and rights.
(iii) Principle of participation:
Every child shall have a right to be heard
and to participate in all processes and
decisions affecting his interest and the
child’s views shall be taken into
consideration with due regard to the age
and maturity of the child.
(iv) Principle of best interest:
All decisions regarding the child shall be
based on the primary consideration that
they are in the best interest of the child
and to help the child to develop full
potential.
(v) Principle of family
responsibility: The primary responsibility
of care, nurture and protection of the child
shall be that of the biological family or
adoptive or foster parents, as the case may
be.
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(vi) Principle of safety: All
measures shall be taken to ensure that the
child is safe and is not subjected to any
harm, abuse or maltreatment while in
contact with the care and protection
system, and thereafter.
(vii) Positive measures: All
resources are to be mobilised including
those of family and community, for
promoting the well-being, facilitating
development of identity and providing an
inclusive and enabling environment, to
reduce vulnerabilities of children and the
need for intervention under this Act.
(viii) Principle of nonstigmatising
semantics: Adversarial or
accusatory words are not to be used in the
processes pertaining to a child.
(ix) Principle of non-waiver of
rights: No waiver of any of the right of
the child is permissible or valid, whether
sought by the child or person acting on
behalf of the child, or a Board or a
Committee and any non-exercise of a
fundamental right shall not amount to
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waiver.
(x) Principle of equality and
non-discrimination: There shall be no
discrimination against a child on any
grounds including sex, caste, ethnicity,
place of birth, disability and equality of
access, opportunity and treatment shall be
provided to every child.
(xi) Principle of right to privacy
and confidentiality: Every child shall
have a right to protection of his privacy
and confidentiality, by all means and
throughout the judicial process.
(xii) Principle of
institutionalisation as a measure of
last resort: A child shall be placed in
institutional care as a step of last resort
after making a reasonable inquiry.
(xiii) Principle of repatriation
and restoration: Every child in the
juvenile justice system shall have the right
to be re-united with his family at the
earliest and to be restored to the same
socio-economic and cultural status that he
was in, before coming under the purview of
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this Act, unless such restoration and
repatriation is not in his best interest.
(xiv) Principle of fresh start: All
past records of any child under the Juvenile
Justice system should be erased except in
special circumstances.
(xv) Principle of diversion:
Measures for dealing with children in
conflict with law without resorting to
judicial proceedings shall be promoted
unless it is in the best interest of the child
or the society as a whole.
(xvi) Principles of natural
justice: Basic procedural standards of
fairness shall be adhered to, including the
right to a fair hearing, rule against bias and
the right to review, by all persons or
bodies, acting in a judicial capacity under
this Act.
(emphasis added)
Section 4. Juvenile Justice
Board.- (1) Notwithstanding anything
contained in the Code of Criminal
Procedure, 1973 (2 of 1974), the State
Government shall, constitute for every
district, one or more Juvenile Justice
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Boards for exercising the powers and
discharging its functions relating to children
in conflict with law under this Act.
(2) A Board shall consist of a
Metropolitan Magistrate or a Judicial
Magistrate of First Class not being Chief
Metropolitan Magistrate or Chief Judicial
Magistrate (hereinafter referred to as
Principal Magistrate) with at least three
years experience and two social workers
selected in such manner as may be
prescribed, of whom at least one shall be a
woman, forming a Bench and every such
Bench shall have the powers conferred by
the Code of Criminal Procedure, 1973 (2
of 1974) on a Metropolitan Magistrate or,
as the case may be, a Judicial Magistrate
of First Class.
(3) No social worker shall be
appointed as a member of the Board
unless such person has been actively
involved in health, education, or welfare
activities pertaining to children for atleast
seven years or a practicing professional
with a degree in child psychology,
psychiatry, sociology or law.
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(4) No person shall be eligible for
selection as a member of the Board, if he-
(i) has any past record of
violation of human rights or child rights;
(ii) has been convicted of an
offence involving moral turpitude, and
such conviction has not been reversed or
has not been granted full pardon in
respect of such offence;
(iii) has been removed or
dismissed from service of the Central
Government or a State Government or an
undertaking or corporation owned or
controlled by the Central Government or a
State Government;
(iv) has ever indulged in child
abuse or employment of child labour or
any other violation of human rights or
immoral act.
(5) The State Government shall
ensure that induction training and
sensitisation of all members including
Principal Magistrate of the Board on care,
protection, rehabilitation, legal provisions
and justice for children, as may be

prescribed, is provided within a period of
sixty days from the date of appointment.
(6) The term of office of the
members of the Board and the manner in
which such member may resign shall be
such, as may be prescribed.
(7) The appointment of any
member of the Board, except the Principal
Magistrate, may be terminated after
holding an inquiry by the State
Government, if he–
(i) has been found guilty of
misuse of power vested under this Act; or
(ii) fails to attend the proceedings
of the Board consecutively for three
months without any valid reason; or
(iii) fails to attend less than threefourths
of the sittings in a year; or
(iv) becomes ineligible under subsection
(4) during his term as a member.
Section 5. Placement of person,
who cease to be a child during process
of inquiry.-Where an inquiry has been
initiated in respect of any child under this

Act, and during the course of such inquiry,
the child completes the age of eighteen
years, then, notwithstanding anything
contained in this Act or in any other law
for the time being in force, the inquiry may
be continued by the Board and orders may
be passed in respect of such person as if
such person had continued to be a child.
Section 6. Placement of persons,
who committed an offence, when
person was below the age of eighteen
years.-(1) Any person, who has completed
eighteen years of age, and is apprehended
for committing an offence when he was
below the age of eighteen years, then,
such person shall, subject to the provisions
of this section, be treated as a child during
the process of inquiry.
(2) The person referred to in subsection
(1), if not released on bail by the
Board shall be placed in a place of safety
during the process of inquiry.
(3) The person referred to in subsection
(1) shall be treated as per the
procedure specified under the provisions of
this Act.

Section 7. Procedure in relation
to Board.- (1) The Board shall meet at
such times and shall observe such rules in
regard to the transaction of business at its
meetings, as may be prescribed and shall
ensure that all procedures are child friendly
and that the venue is not intimidating to
the child and does not resemble as regular
courts.
(2) A child in conflict with law
may be produced before an individual
member of the Board, when the Board is
not in sitting.
(3) A Board may act
notwithstanding the absence of any
member of the Board, and no order passed
by the Board shall be invalid by the reason
only of the absence of any member during
any stage of proceedings:
Provided that there shall be atleast
two members including the Principal
Magistrate present at the time of final
disposal of the case or in making an order
under sub-section (3) of section 18.
(4) In the event of any difference
of opinion among the members of the

Board in the interim or final disposal, the
opinion of the majority shall prevail, but
where there is no such majority, the
opinion of the Principal Magistrate, shall
prevail.
Section 8. Powers, functions and
responsibilities of the Board.-(1)
Notwithstanding anything contained in any
other law for the time being in force but
save as otherwise expressly provided in
this Act, the Board constituted for any
district shall have the power to deal
exclusively with all the proceedings under
this Act, relating to children in conflict with
law, in the area of jurisdiction of such
Board.
(2) The powers conferred on the
Board by or under this Act may also be
exercised by the High Court and the
Children’s Court, when the proceedings
come before them under section 19 or in
appeal, revision or otherwise.
(3) The functions and
responsibilities of the Board shall include–
(a) ensuring the informed

participation of the child and the parent or
guardian, in every step of the process;
(b) ensuring that the child’s rights
are protected throughout the process of
apprehending the child, inquiry, aftercare
and rehabilitation;
(c) ensuring availability of legal
aid for the child through the legal services
institutions;
(d) wherever necessary the Board
shall provide an interpreter or translator,
having such qualifications, experience, and
on payment of such fees as may be
prescribed, to the child if he fails to
understand the language used in the
proceedings;
(e) directing the Probation Officer,
or in case a Probation Officer is not
available to the Child Welfare Officer or a
social worker, to undertake a social
investigation into the case and submit a
social investigation report within a period
of fifteen days from the date of first
production before the Board to ascertain
the circumstances in which the alleged

offence was committed;
(f) adjudicate and dispose of
cases of children in conflict with law in
accordance with the process of inquiry
specified in section 14;
(g) transferring to the Committee,
matters concerning the child alleged to be
in conflict with law, stated to be in need of
care and protection at any stage, thereby
recognising that a child in conflict with law
can also be a child in need of care
simultaneously and there is a need for the
Committee and the Board to be both
involved;
(h) disposing of the matter and
passing a final order that includes an
individual care plan for the child’s
rehabilitation, including follow up by the
Probation Officer or the District Child
Protection Unit or a member of a nongovernmental
organisation, as may be
required;
(i) conducting inquiry for declaring
fit persons regarding care of children in
conflict with law;

(j) conducting at least one
inspection visit every month of residential
facilities for children in conflict with law and
recommend action for improvement in
quality of services to the District Child
Protection Unit and the State Government;
(k) order the police for registration
of first information report for offences
committed against any child in conflict with
law, under this Act or any other law for the
time being in force, on a complaint made in
this regard;
(l) order the police for registration
of first information report for offences
committed against any child in need of
care and protection, under this Act or any
other law for the time being in force, on a
written complaint by a Committee in this
regard;
(m) conducting regular inspection
of jails meant for adults to check if any
child is lodged in such jails and take
immediate measures for transfer of such a
child to the observation home; and
(n) any other function as may be
prescribed.
Section 9. Procedure to be
followed by a Magistrate who has not
been empowered under this Act.-(1)
When a Magistrate, not empowered to
exercise the powers of the Board under
this Act is of the opinion that the person
alleged to have committed the offence and
brought before him is a child, he shall,
without any delay, record such opinion and
forward the child immediately along with
the record of such proceedings to the
Board having jurisdiction.
(2) In case a person alleged to
have committed an offence claims before a
court other than a Board, that the person
is a child or was a child on the date of
commission of the offence, or if the court
itself is of the opinion that the person was
a child on the date of commission of the
offence, the said court shall make an
inquiry, take such evidence as may be
necessary (but not an affidavit) to
determine the age of such person, and
shall record a finding on the matter,
stating the age of the person as nearly as

may be:
Provided that such a claim may be
raised before any court and it shall be
recognized at any stage, even after final
disposal of the case, and such a claim shall
be determined in accordance with the
provisions contained in this Act and the
rules made thereunder even if the person
has ceased to be a child on or before the
date of commencement of this Act.
(3) If the court finds that a person
has committed an offence and was a child
on the date of commission of such offence,
it shall forward the child to the Board for
passing appropriate orders and the
sentence, if any, passed by the court shall
be deemed to have no effect.
(4) In case a person under this
section is required to be kept in protective
custody, while the person’s claim of being
a child is being inquired into, such person
may be placed, in the intervening period in
a place of safety.
Section 10. Apprehension of
child alleged to be in conflict with

law.- (1) As soon as a child alleged to be
in conflict with law is apprehended by the
police, such child shall be placed under the
charge of the special juvenile police unit or
the designated child welfare police officer,
who shall produce the child before the
Board without any loss of time but within a
period of twenty-four hours of
apprehending the child excluding the time
necessary for the journey, from the place
where such child was apprehended:
Provided that in no case, a child
alleged to be in conflict with law shall be
placed in a police lockup or lodged in a jail.
(2) The State Government shall
make rules consistent with this Act,—
(i) to provide for persons through
whom (including registered voluntary or
nongovernmental organisations) any child
alleged to be in conflict with law may be
produced before the Board;
(ii) to provide for the manner in
which the child alleged to be in conflict
with law may be sent to an observation
home or place of safety, as the case may

be.
Section 11. Role of person in
whose charge child in conflict with law
is placed.- Any person in whose charge a
child in conflict with law is placed, shall
while the order is in force, have
responsibility of the said child, as if the
said person was the child’s parent and
responsible for the child’s maintenance:
Provided that the child shall
continue in such person’s charge for the
period stated by the Board,
notwithstanding that the said child is
claimed by the parents or any other
person except when the Board is of the
opinion that the parent or any other
person are fit to exercise charge over such
child.
Section 12. Bail to a person who
is apparently a child alleged to be in
conflict with law.- (1) When any person,
who is apparently a child and is alleged to
have committed a bailable or non-bailable
offence, is apprehended or detained by the
police or appears or brought before a
Board, such person shall, notwithstanding

anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974) or in any
other law for the time being in force, be
released on bail with or without surety or
placed under the supervision of a probation
officer or under the care of any fit person:
Provided that such person shall not
be so released if there appears reasonable
grounds for believing that the release is
likely to bring that person into association
with any known criminal or expose the said
person to moral, physical or psychological
danger or the person’s release would
defeat the ends of justice, and the Board
shall record the reasons for denying the
bail and circumstances that led to such a
decision.
(2) When such person having been
apprehended is not released on bail under
sub-section (1) by the officer-in-charge of
the police station, such officer shall cause
the person to be kept only in an
observation home in such manner as may
be prescribed until the person can be
brought before a Board.
(3) When such person is not

released on bail under sub-section (1) by
the Board, it shall make an order sending
him to an observation home or a place of
safety, as the case may be, for such period
during the pendency of the inquiry
regarding the person, as may be specified
in the order.
(4) When a child in conflict with
law is unable to fulfill the conditions of bail
order within seven days of the bail order,
such child shall be produced before the
Board for modification of the conditions of
bail.
Section 13. Information to
parents, guardian or probation officer.-
(1) Where a child alleged to be in conflict
with law is apprehended, the officer
designated as Child Welfare Police Officer
of the police station, or the special juvenile
police unit to which such child is brought,
shall, as soon as possible after
apprehending the child, inform —
(i) the parent or guardian of such
child, if they can be found, and direct them
to be present at the Board before which
the child is produced; and

(ii) the probation officer, or if no
probation officer is available, a Child
Welfare Officer, for preparation and
submission within two weeks to the Board,
a social investigation report containing
information regarding the antecedents and
family background of the child and other
material circumstances likely to be of
assistance to the Board for making the
inquiry.
2. Where a child is released on
bail, the probation officer or the Child
Welfare Officer shall be informed by the
Board.
Section 14. Inquiry by Board
regarding child in conflict with law.-(1)
Where a child alleged to be in conflict with
law is produced before Board, the Board
shall hold an inquiry in accordance with the
provisions of this Act and may pass such
orders in relation to such child as it deems
fit under sections 17 and 18 of this Act.
(2) The inquiry under this section
shall be completed within a period of four
months from the date of first production of
the child before the Board, unless the

period is extended, for a maximum period
of two more months by the Board, having
regard to the circumstances of the case
and after recording the reasons in writing
for such extension.
(3) A preliminary assessment in
case of heinous offences under section 15
shall be disposed of by the Board within a
period of three months from the date of
first production of the child before the
Board.
(4) If inquiry by the Board under
sub-section (2) for petty offences remains
inconclusive even after the extended
period, the proceedings shall stand
terminated:
Provided that for serious or heinous
offences, in case the Board requires further
extension of time for completion of inquiry,
the same shall be granted by the Chief
Judicial Magistrate or, as the case may be,
the Chief Metropolitan Magistrate, for
reasons to be recorded in writing.
(5) The Board shall take the
following steps to ensure fair and speedy

inquiry, namely:—
(a) at the time of initiating the
inquiry, the Board shall satisfy itself that
the child in conflict with law has not been
subjected to any ill-treatment by the police
or by any other person, including a lawyer
or probation officer and take corrective
steps in case of such ill-treatment;
(b) in all cases under the Act, the
proceedings shall be conducted in simple
manner as possible and care shall be taken
to ensure that the child, against whom the
proceedings have been instituted, is given
child-friendly atmosphere during the
proceedings;
(c) every child brought before the
Board shall be given the opportunity of
being heard and participate in the inquiry;
(d) cases of petty offences, shall
be disposed of by the Board through
summary proceedings, as per the
procedure prescribed under the Code of
Criminal Procedure, 1973 (2 of 1974);
(e) inquiry of serious offences
shall be disposed of by the Board, by

following the procedure, for trial in
summons cases under the Code of Criminal
Procedure, 1973 (2 of 1974);
(f) inquiry of heinous offences,—
(i) for child below the age of
sixteen years as on the date of
commission of an offence shall
be disposed of by the Board
under clause (e);
(ii) for child above the age
of sixteen years as on the date
of commission of an offence
shall be dealt with in the
manner prescribed under
section 15.
Section 15. Preliminary
assessment into heinous offences by
Board.-(1) In case of a heinous offence
alleged to have been committed by a child,
who has completed or is above the age of
sixteen years, the Board shall conduct a
preliminary assessment with regard to his
mental and physical capacity to commit
such offence, ability to understand the
consequences of the offence and the

circumstances in which he allegedly
committed the offence, and may pass an
order in accordance with the provisions of
sub-section (3) of section 18:
Provided that for such an
assessment, the Board may take the
assistance of experienced psychologists or
psycho-social workers or other experts.
Explanation.—For the purposes of
this section, it is clarified that preliminary
assessment is not a trial, but is to assess
the capacity of such child to commit and
understand the consequences of the
alleged offence.
(2) Where the Board is satisfied
on preliminary assessment that the matter
should be disposed of by the Board, then
the Board shall follow the procedure, as far
as may be, for trial in summons case under
the Code of Criminal Procedure, 1973 (2
of 1974):
Provided that the order of the Board
to dispose of the matter shall be
appealable under sub-section (2) of section
101.

Provided further that the assessment
under this section shall be completed
within the period specified in section 14.
Section 18. Orders regarding
child found to be in conflict with law.-
(1) Where a Board is satisfied on inquiry
that a child irrespective of age has
committed a petty offence, or a serious
offence, or a child below the age of sixteen
years has committed a heinous offence,
then, notwithstanding anything contrary
contained in any other law for the time
being in force, and based on the nature of
offence, specific need for supervision or
intervention, circumstances as brought out
in the social investigation report and past
conduct of the child, the Board may, if it
so thinks fit,—
(a) allow the child to go home
after advice or admonition by following
appropriate inquiry and counselling to such
child and to his parents or the guardian;
(b) direct the child to participate
in group counselling and similar activities;
(c) order the child to perform

community service under the supervision of
an organisation or institution, or a specified
person, persons or group of persons
identified by the Board;
(d) order the child or parents or
the guardian of the child to pay fine:
Provided that, in case the child is
working, it may be ensured that the
provisions of any labour law for the time
being in force are not violated;
(e) direct the child to be released
on probation of good conduct and placed
under the care of any parent, guardian or
fit person, on such parent, guardian or fit
person executing a bond, with or without
surety, as the Board may require, for the
good behaviour and child’s well-being for
any period not exceeding three years;
(f) direct the child to be released
on probation of good conduct and placed
under the care and supervision of any fit
facility for ensuring the good behaviour
and child’s well-being for any period not
exceeding three years;
(g) direct the child to be sent to a

special home, for such period, not
exceeding three years, as it thinks fit, for
providing reformative services including
education, skill development, counselling,
behaviour modification therapy, and
psychiatric support during the period of
stay in the special home:
Provided that if the conduct and
behaviour of the child has been such that,
it would not be in the child’s interest, or in
the interest of other children housed in a
special home, the Board may send such
child to the place of safety.
(2) If an order is passed under
clauses (a) to (g) of sub-section (1), the
Board may, in addition pass orders to—
(i) attend school; or
(ii) attend a vocational training
centre; or
(iii) attend a therapeutic centre; or
(iv) prohibit the child from visiting,
frequenting or appearing at a specified
place; or
(v) undergo a de-addiction programme.
(3) Where the Board after
preliminary assessment under section 15
pass an order that there is a need for trial
of the said child as an adult, then the
Board may order transfer of the trial of the
case to the Children’s Court having
jurisdiction to try such offences.
Section 19. Powers of
Children’s Court-(1) After the receipt
of preliminary assessment from the Board
under section 15, the Children´s Court
may decide that—
(i) there is a need for trial of the
child as an adult as per the provisions of
the Code of Criminal Procedure, 1973 (2
of 1974) and pass appropriate orders after
trial subject to the provisions of this
section and section 21, considering the
special needs of the child, the tenets of
fair trial and maintaining a child friendly
atmosphere;
(ii) there is no need for trial of
the child as an adult and may conduct an
inquiry as a Board and pass appropriate
orders in accordance with the provisions of

section 18.
(2) The Children’s Court shall
ensure that the final order, with regard to a
child in conflict with law, shall include an
individual care plan for the rehabilitation of
child, including follow up by the probation
officer or the District Child Protection Unit
or a social worker.
(3) The Children’s Court shall
ensure that the child who is found to be in
conflict with law is sent to a place of
safety till he attains the age of twenty-one
years and thereafter, the person shall be
transferred to a jail:
Provided that the reformative
services including educational services,
skill development, alternative therapy such
as counselling, behaviour modification
therapy, and psychiatric support shall be
provided to the child during the period of
his stay in the place of safety.
(4) The Children’s Court shall
ensure that there is a periodic follow up
report every year by the probation officer
or the District Child Protection Unit or a
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social worker, as required, to evaluate the
progress of the child in the place of safety
and to ensure that there is no ill-treatment
to the child in any form.
(5) The reports under sub-section
(4) shall be forwarded to the Children’s
Court for record and follow up, as may be
required.
Section 20. Child attained age of
twenty-one years and yet to complete
prescribed term of stay in place of
safety.- (1) When the child in conflict
with the law attains the age of twenty-one
years and is yet to complete the term of
stay, the Children´s Court shall provide for
a follow up by the probation officer or the
District Child Protection Unit or a social
worker or by itself, as required, to
evaluate if such child has undergone
reformative changes and if the child can
be a contributing member of the society
and for this purpose the progress records
of the child under sub-section (4) of
section 19, along with evaluation of
relevant experts are to be taken into
consideration.
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(2) After the completion of the
procedure specified under sub-section (1),
the Children’s Court may—
(i) decide to release the child on
such conditions as it deems fit which
includes appointment of a monitoring
authority for the remainder of the
prescribed term of stay;
(ii) decide that the child shall
complete the remainder of his term in a
jail:
Provided that each State
Government shall maintain a list of
monitoring authorities and monitoring
procedures as may be prescribed.
Sections 21. Order that may not
be passed against a child in conflict
with law.-No child in conflict with law
shall be sentenced to death or for life
imprisonment without the possibility of
release, for any such offence, either under
the provisions of this Act or under the
provisions of the Indian Penal Code (45 of
1860) or any other law for the time being
in force.
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Section 22. Proceeding under
Chapter VIII of the Code of Criminal
Procedure not to apply against child.-
Notwithstanding anything to the contrary
contained in the Code of Criminal
Procedure, 1973 (2 of 1974), or any
preventive detention law for the time being
in force, no proceeding shall be instituted
and no order shall be passed against any
child under Chapter VIII of the said Code.
Section 23. No joint proceedings
of child in conflict with law and person
not a child. (1) Notwithstanding anything
contained in section 223 of the Code of
Criminal Procedure, 1973 (2 of 1974) or in
any other law for the time being in force,
there shall be no joint proceedings of a
child alleged to be in conflict with law, with
a person who is not a child.
(2) If during the inquiry by the
Board or by the Children’s Court, the
person alleged to be in conflict with law is
found that he is not a child, such person
shall not be tried along with a child.
Section 101. Appeals.- (1)
Subject to the provisions of this Act, any
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person aggrieved by an order made by the
Committee or the Board under this Act
may, within thirty days from the date of
such order, prefer an appeal to the
Children’s Court, except for decisions by
the Committee related to Foster Care and
Sponsorship After Care for which the
appeal shall lie with the District
Magistrate:
Provided that the Court of Sessions,
or the District Magistrate, as the case may
be, may entertain the appeal after the
expiry of the said period of thirty days, if
it is satisfied that the appellant was
prevented by sufficient cause from filing
the appeal in time and such appeal shall
be decided within a period of thirty days.
(2) An appeal shall lie against an
order of the Board passed after making the
preliminary assessment into a heinous
offence under section 15 of the Act, before
the Court of Sessions and the Court may,
while deciding the appeal, take the
assistance of experienced psychologists
and medical specialists other than those
whose assistance has been obtained by the
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Board in passing the order under the said
section.
(3) No appeal shall lie from,—
(a) any order of acquittal
made by the Board in respect of a child
alleged to have committed an offence other
than the heinous offence by a child who
has completed or is above the age of
sixteen years; or
(b) any order made by a
Committee in respect of finding that a
person is not a child in need of care and
protection.
(4) No second appeal shall lie from
any order of the Court of Session, passed
in appeal under this section.
(5) Any person aggrieved by an
order of the Children’s Court may file
an appeal before the High Court in
accordance with the procedure
specified in the Code of Criminal
Procedure, 1973 (2 of 1974).
(emphasis added)
Section 110. Power to make
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rules.-(1) The State Government shall,
by notification in the Official Gazette, make
rules to carry out the purposes of this Act:
Provided that the Central
Government may, frame model rules in
respect of all or any of the matters with
respect to which the State Government is
required to make rules and where any such
model rules have been framed in respect
of any such matter, they shall apply to the
State mutatis mutandis until the rules in
respect of that matter are made by the
State Government and while making any
such rules, they conform to such model
rules.”
62. It would be relevant to mention here that
in exercise of powers conferred by the provisions prescribed
under Section 110(1) of the Act of 2015, the Central
Government has framed Juvenile Justice (Care and
Protection of Children) Model Rules, 2016 (for short ‘Rules’)
to carry out the purposes of the Act of 2015.
63. Rule 13 of the Rules being of importance
in the instant case is set out hereinbelow :-
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“Rule 13. Procedure in relation
to Children’s Court and Monitoring
Authorities.- (1) Upon receipt of
preliminary assessment from the Board
the Children’s Court may decide whether
there is need for trial of the child as an
adult or as a child and pass appropriate
orders.
(2) Where an appeal has been filed
under sub-section (1) of section 101 of the
Act against the order of the Board
declaring the age of the child, the
Children’s Court shall first decide the said
appeal.
(3) Where an appeal has been filed
under sub-section (2) of section 101 of
the Act against the finding of the
preliminary assessment done by the
Board, the Children’s Court shall first
decide the appeal.
(4) Where the appeal under subsection
(2) of section 101 of the Act is
disposed of by the Children’s Court on a
finding that there is no need for trial of the
child as an adult, it shall dispose of the
same as per section 19 of the Act and
these rules.
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(5) Where the appeal under subsection
(2) of section 101 of the Act is
disposed of by the Children’s Court on a
finding that the child should be tried as an
adult the Children’s Court shall call for the
file of the case from the Board and dispose
of the matter as per the provisions of the
Act and these rules.
(6) The Children’s Court shall record
its reasons while arriving at a conclusion
whether the child is to be treated as an
adult or as a child.
(7) Where the Children’s Court
decides that there is no need for trial of
the child as an adult, and that it shall
decide the matter itself:-
(i) It may conduct the inquiry as if it
were functioning as a Board and dispose of
the matter in accordance with the
provisions of the Act and these rules.
(ii) The Children’s Court, while
conducting the inquiry shall follow the
procedure for trial in summons case under
the Code of Criminal Procedure, 1973.
(iii) The proceedings shall be
conducted in camera and in a child friendly
atmosphere, and there shall be no joint
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trial of a child alleged to be in conflict with
law, with a person who is not a child.
(iv) When witnesses are produced
for examination the Children’s Court shall
ensure that the inquiry is not conducted in
the spirit of strict adversarial proceedings
and it shall use the powers conferred by
section 165 of the Indian Evidence Act,
1872 (1 of 1872).
(v) While examining a child in
conflict with law and recording his
statement, the Children’s Court shall
address the child in a child-friendly manner
in order to put the child at ease and to
encourage him to state the facts and
circumstances without any fear, not only in
respect of the offence which is alleged
against the child, but also in respect of the
home and social surroundings and the
influence to which the child might have
been subjected.
(vi) The dispositional order passed
by the Children’s Court shall necessarily
include an individual care plan in Form 7
for the child in conflict with law concerned,
prepared by a Probation Officer or Child
Welfare Officer or recognized voluntary
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organisation on the basis of interaction
with the child and his family, where
possible.
(vii) The Children’s Court, in such
cases, may pass any orders as provided in
sub-sections (1) and (2) of section 18 of
the Act.
(8) Where the Children’s Court
decides that there is a need for trial of
the child as an adult:-
(i) It shall follow the procedure
prescribed by the Code of Criminal
Procedure, 1973 of trial by sessions
and maintaining a child friendly
atmosphere.
(ii) The final order passed by the
Children’s Court shall necessarily
include an individual care plan for the
child as per Form 7 prepared by a
Probation Officer or Child Welfare
Officer or recognized voluntary
organisation on the basis of
interaction with the child and his
family, where possible.
(iii) Where the child has been
found to be involved in the offence,
the child may be sent to a place of
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safety till the age of twenty-one
years.
(iv) While the child remains at
the place of safety, there shall be
yearly review by the Probation Officer
or the District Child Protection Unit or
a social worker in Form 13 to evaluate
the progress of the child and the
reports shall be forwarded to the
Children’s Court.
(v) The Children’s Court may also
direct the child to be produced before
it periodically and at least once every
three months for the purpose of
assessing the progress made by the
child and the facilities provided by the
institution for the implementation of
the individual care plan.
(vi) When the child attains the
age of twenty-one years and is yet to
complete the term of stay, the
Children’s Court shall:-
(a) interact with the child in
order to evaluate whether the child
has undergone reformative changes
and if the child can be a contributing
member of the society.
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(b) take into account the
periodic reports of the progress of the
child, prepared by the Probation
Officer or the District Child Protection
Unit or a social worker, if needed and
further direct that institutional
mechanism if inadequate be
strengthened.
(c) After making the evaluation,
the Children’s Court may decide to:-
(ca) release the child forthwith;
(cb) release the child on
execution of a personal bond with or
without sureties for good behaviour;
(cc) release the child and issue
directions regarding education,
vocational training, apprenticeship,
employment, counselling and other
therapeutic interventions with a view
to promoting adaptive and positive
behaviour etc.;
(cd) release the child and
appoint a monitoring authority for the
remainder of the prescribed term of
stay. The monitoring authority, where
appointed shall maintain a
Rehabilitation Card for the child in
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Form 14.
(vii) For the purpose of sub-rule
(vi) (c) (cd) of this rule:-
(a) A Probation Officer or Case
Worker or Child Welfare Officer or a fit
person may be appointed as a
monitoring authority.
(b) The District Child Protection
Unit shall maintain a list of such
persons who can be engaged as
monitoring authorities which shall be
sent to the Children’s Court along with
bi-annual updates.
(c) The child shall for the first
quarter after release, meet with the
monitoring authority on a fortnightly
basis or at such intervals as may be
directed by the Children’s Court. The
monitoring authority shall fix a time
and venue for such meetings in
consultation with the child. The
monitoring authority will forward its
observations on the progress of the
child on a monthly basis to the
Children’s Court.
(d) At the end of the first quarter
the monitoring authority shall make
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recommendations regarding the
further follow up procedure required
for the child.
(e) Where the child, after release
is found to be indulging in criminal
activities or associating with people
with criminal antecedents, he shall be
brought before the Children’s Court
for further orders.
(f) If it is found that the child
no longer requires to be monitored,
the monitoring authority shall place
the detailed report with
recommendations before the
Children’s Court which shall issue
further directions either terminating
the monitoring or for its continuation.
(g) After the first quarter, the
child shall meet the monitoring
authority at such intervals as may be
directed by the Children’s Court based
on the recommendations made by the
monitoring authority at the end of the
first quarter and the monitoring
authority shall forward its report to
the Children’s Court which shall review
the same every quarter.”
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(emphasis added)
64. We have noticed hereinabove that the Act
of 2015 classifies offences in three categories. They are:
‘petty offences’, ‘serious offences’ and ‘heinous offences’.
65. ‘Petty offences’ are those offences for
which the maximum punishment under the Indian Penal
Code or any other law for the time being in force is
imprisonment upto 3 years. ‘Serious offences’ are those
offences for which the maximum punishment under the
Indian Penal Code or any other law for the time being in
force is imprisonment between 3 to 7 years and ‘heinous
offences’ are those offences for which the minimum
punishment under the Indian Penal Code or any other law
for the time being in force is imprisonment for 7 years or
more.
66. The legislature has consciously classified
the offences under different categories in order to achieve
the object of the Act of 2015.
67. The Act of 2015 treats all the children
below 18 years equally except in the age group of 16 to 18
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years, who are alleged to have committed ‘heinous offences’.
68. Section 3 of the Act of 2015 enumerates
the general principles to be followed in administration of the
Act. It regulates the conduct and behaviour of all persons
functioning under the Act. It states that the Central
Government, the State Governments, the Board and other
agencies, as the case may be, while implementing the
provisions of the Act shall be guided by the fundamental
principles enumerated in clauses (i) to (xvi).
69. Section 4 of the Act of 2015 provides for
constitution of one or more Board by the State Government
for every district for exercising the powers and discharging
the duties conferred or imposed on them in relation to
children in conflict with law under the Act. It also provides
for the composition of the Board, which shall consist of a
Metropolitan or a Judicial Magistrate of the first class (not
being Chief Metropolitan Magistrate or Chief Judicial
Magistrate) with at least three years of experience and two
social workers from two different reputed non-governmental
organizations.
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70. Section 5 of the Act of 2015 clarifies that
when an inquiry has been initiated in respect of any child
under this Act, and during the course of inquiry, if child
completes the age of eighteen years, then, the inquiry may
be continued by the Board and orders may be passed in
respect of that person as if such person had continued to be
a child.
71. Section 6 of the Act of 2015 provides that
if a person, who has completed 18 years of age but is below
21 years, is apprehended for committing an offence when he
was below the age of 18 years, then the person shall be
treated as a child during the process of inquiry. It further
states that if the person is not released on bail by the Board
then the person shall be placed in a Place of Safety during
the process of inquiry. If the Board after inquiry comes to
the conclusion that the person has committed any offence,
then the person shall be placed in a Place of Safety till he
completes his term.
72. Section 7 of the Act of 2015 provides that
the Board shall ensure that all procedures are child friendly
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and that the venue is not intimidating to the child and does
not resemble regular Courts. Further, the times at which the
Board shall meet and the rules that shall be observed in
regard to the transaction of business at its meetings, shall be
prescribed. It further states that when the Board is not
sitting, a child in conflict with law may be produced before
an individual member of the Board. It also states that a
Board may act even in the absence of any member of the
Board and no order passed by the Board shall be invalid in
the absence of any member during any stage of proceedings.
Section 5 of the Act of 2015 clarifies that at the time of final
disposal of the case or in making any order under Section
18(3) of the Act of 2015 at least two members including the
Principal Magistrate shall be present and in the event of any
difference of opinion among the members of the Board in the
interim or final disposal, the opinion of the majority shall
prevail. In case there is no majority then the opinion of the
Principal Magistrate, shall prevail.
73. Section 8 of the Act of 2015 provides the
functions and responsibilities of the Board. It states that the
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Board constituted for any district shall have the power to
deal exclusively with all proceedings under this Act relating
to children in conflict with law in the area of jurisdiction of
such Board.
74. Section 8(2) of the Act of 2015,
which is noteworthy for us provides that the powers
conferred on the Board under the Act may also be
exercised by the High Court and the Children’s Court,
when the proceedings come before them as provided
under Section 19 of the Act of 2015 or in appeal,
revision or otherwise.
75. Section 8(3) of the Act of 2015 specifies
the functions and responsibilities of the Board, but those are
only illustrative and not exhaustive and any additional
functions may be prescribed in the rules to be framed under
the Act.
76. On a careful consideration of the
provisions prescribed under Section 8 of the Act of 2015,
specially its sub-section (2), the answer to the third question
“Whether the powers conferred on Board in the matter
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of bail to a person, who is apparently a child alleged to
be in conflict with law are also available to the
Children’s Court” becomes abundantly clear.
77. In view of clear, unambiguous and
specific stipulation in Section 8(2) of the Act of 2015,
which provides that the powers conferred on the
Board under the Act may also be exercised by the High
Court and the Children’s Court, we unhesitatingly
conclude and hold that in the matter of grant of bail
to a person, who is apparently a child and is alleged to
have committed a bailable or non-bailable offence, the
powers conferred on the Board under the Act of 2015
are also available to the Children’s Court.
78. The third question for determination is
answered, accordingly.
79. Section 9 of the Act of 2015 provides that
when a Magistrate, who is not empowered to exercise the
powers of Board under this Act is of the opinion that the
person alleged to have committed the offence and brought
before him is a child then in such a case the Magistrate shall,
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without any delay, record his opinion and forward the child
immediately, and send record of the proceeding, to the
Board having jurisdiction over the proceeding. In case, a
person alleged to have committed an offence claims that he
was a child on the date of commission of the offence before
a court other than a Board, or is the court itself is of the
opinion that the person was a child on the date of
commission of the offence, then the court shall make an
inquiry, take such evidence as may be necessary (but not an
affidavit) to determine the age of the person, and shall
record a finding on the matter, stating the age of the person
as nearly as may be. This section further clarifies that such a
claim can be raised before any court and it shall be
recognized at any stage, even after final disposal of the case.
Such a claim shall be determined in terms of the provisions
contained in the Act and the rules made under the Act even
if the person is ceased to be a child on or before the date of
commencement of the Act. This section further states that if
the court finds that a person has committed an offence and
was a child on the date of commission of the offence, it shall
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forward the child to the Board for passing orders and the
sentence. If any order and the sentence is passed by the
court, it shall be deemed to have no effect in such case. This
section also states that in case a person is required to be
kept in protective custody, while the person’s claim of being
a child is being inquired into, then such person may be
placed, in the interim period, in a ‘Place of Safety’.
80. Chapter IV of the Act of 2015 deals with
procedure in relation to child in conflict with law.
81. Section 10 under Chapter IV of the Act of
2015 provides that as soon as a child alleged to be in conflict
with law is apprehended by the police, he shall be placed
under the charge of the special juvenile police unit or the
designated child welfare police officer. The special juvenile
police unit or the designated child welfare police officer shall
produce the child before the Board without any loss of time,
but within a period of 24 hours of apprehending the child
excluding the time necessary for the journey from the place
where the child was apprehended. It clarifies that in no case
a child alleged to be in conflict with law shall be placed in a
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police lock-up or lodged in a jail. It also provides that the
State Government shall make rules consistent with the Act
to provide for persons through whom (including registered
voluntary or non-governmental organization) any child
alleged to be in conflict with law may be produced before the
Board and to provide for the manner in which the child
alleged to be in conflict with law may be sent to an
Observation Home or Place of Safety as the case may.
82. Section 11 under Chapter IV of the Act of
2015 provides that any person in whose charge a child in
conflict with law is placed shall while the order is in force
have responsibility of the child as if the said person was the
child’s parent and responsible for the child’s maintenance. It
further clarifies that the child shall continue to stay in the
person’s charge for the period stated by the Board. The
person shall continue to have charge of the child even when
the child is claimed by the parents or any other person
except when the Board is of the opinion that the parent or
any other person are fit to exercise charge over such child.
83. Another important provision, which is
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noteworthy for us is Section 12 in Chapter IV of the Act of
2015, which deals with bail to a person who is apparently a
child alleged to be in conflict with law.
84. While interpreting Section 12, the Board is
duty bound to be guided by the fundamental principles
enumerated in Section 3 of the Act of 2015, specially the
principles of ‘best interest’, ‘repatriation’ and ‘restoration’ of
child. The fundamental principles in Section 3(xii) provides
that a child shall be placed in institutional care as a step of
last resort after making a reasonable inquiry. The gravity
and nature of the offence are immaterial for consideration of
bail under the Act of 2015. As per Section 12 of the Act of
2015, an application for bail is not decided by reference to
classification of offences, as bailable or non-bailable under
the CrPC. All persons alleged to be in conflict with law and
apparently a child when apprehended must be released
except in the following three circumstances when there is
reasonable ground for believing that :-
(i) The release is likely to bring that person
into association with any known criminal;
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(ii) The release is likely to expose the said
person to moral or psychological danger; and
(iii) The release would defeat the ends of
justice.
85. In all cases, the Board is required to
record its reason, if it refuses to release the child on bail and
the circumstances that laid to such a decision. Taking surety
is not essential for ordering release of the child on bail. The
child may be released without surety also. The child may be
placed under the supervision of a ‘probation officer’ or under
the care of any ‘fit person’ after release on bail. It further
provides that in case the court has directed release of the
child on bail after fulfilling certain conditions, but the child is
unable to fulfill those conditions in the next seven days, the
Board shall modify those conditions.
86. The Board is vested with the power to
grant bail to any person, who has not completed the age of
18 years irrespective of the nature of offence being ‘bailable’
or ‘non-bailable’ or specified in any of three categories of the
Act, as ‘petty offences’, ‘serious offences’ and ‘heinous
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offences’.
87. Our irresistible conclusion, on dealing
with the provisions prescribed under Section 12 of the
Act of 2015, to answer the fourth question “Whether
seriousness of the offence alleged is a ground for
rejecting the bail in case of a child in conflict with
law ?” is, thus, plain and simple. Seriousness of the
offence alleged cannot be made a ground for rejecting
bail in case of a child in conflict with law.
88. Thus, the fourth question for
determination is answered, accordingly.
89. The reason for our answer is that the
principle of bail under the Act of 2015 is not the same as
enumerated under Chapter XXXIII of the CrPC. Bail and not
institutionalization continues to be the principle under the
Act.
90. Section 13 of the Act of 2015 provides
that where a child alleged to be in conflict with law is
apprehended, the Child Welfare Police Officer of the police
station, or the special juvenile police unit to which such child
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is brought, shall, as soon as possible after apprehending the
child, inform the parents or guardian of such child, if they
can be found, and direct them to be present at the Board
before which the child is produced. The Probation Officer, or
if no Probation Officer is available, the Child Welfare Police
Officer, shall also inform the Probation Officer or in his
absence a Child Welfare Officer to prepare the social
investigation report containing information regarding
antecedents and family background of the child and other
material circumstances likely to be of assistance to the Board
for making the inquiry. Section 13(2) of the Act of 2015
provides that if a child is released on bail, the Probation
Officer or the Child Welfare Officer shall be informed by the
Board.
91. Section 14 of the Act of 2015 provides for
inquiry by the Board regarding a child in conflict with law.
92. Section 14(1) of the Act of 2015 provides
that where a child alleged to be in conflict with law is
produced before a Board, then the Board shall hold an
inquiry in accordance with the provisions of the Act and may
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pass such orders in relation to the child as it deems fit under
Sections 17 and 18 of the Act of 2015.
93. Section 14(2) of the Act of 2015 provides
that inquiry under this section shall be completed within a
period of four months from the date of first production of the
child before the Board, unless the period is extended, for a
maximum period of two more months by the Board, having
regard to the circumstances of the case and after recording
the reasons in writing for such extension.
94. Section 14(3) of the Act of 2015 provides
that a preliminary assessment in case of ‘heinous offences’
under Section 15 shall be disposed of by the Board within a
period of three months from the date of first production of
the child before the Board.
95. Section 14(4) of the Act of 2015 provides
that in case of ‘petty’ or ‘serious offences’, if inquiry by the
Board remains inconclusive even after the extended period,
the proceedings shall stand terminated. Proviso to this
section provides that for ‘serious’ or ‘heinous offences’, in
case the Board requires further extension of time for
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completion of inquiry, the same shall be granted by the Chief
Judicial Magistrate or, as the case may be, the Chief
Metropolitan Magistrate, for reasons to be recorded in
writing.
96. Section 14(5) of the Act of 2015 provides
the following steps to be taken by the Board to ensure fair
and speedy inquiry.
97. Section 15 of the Act of 2015, which
enumerates special provisions to tackle the child offenders
committing ‘heinous offences’ in the age group of 16 to 18
years is equally important for us. If a child in the age group
of 16 to 18 years is alleged to have committed ‘heinous
offence’, as defined in Section 2(33) of the Act, the Board is
required to conduct a preliminary assessment.
98. In order to determine, in case of a child in
the age group of 16 to 18 years alleged to have committed a
‘heinous offence’, whether he should be transferred to the
Children’s Court to be tried as an adult, the Board has to
follow certain essential steps.
99. Firstly, it must conclusively determine that
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the child in conflict with law before it is above the age of 16
years, but below the age of 18 years on the date of
commission of the offence. The determination of age is very
crucial for the child as the same has the potential to expose
him to the possibility of being transferred to the Children’s
Court to be tried as an adult.
100. Secondly, if the Board comes to the
conclusion that the child before it was 16 years or above,
but below the age 18 years on the date of commission of the
offence, it would be required to conclusively determine
whether the offence alleged to have been committed by him
is a ‘heinous offence’ or not.
101. Thirdly, transfer of a child for trial as an
adult can only be done after preliminary assessment by the
Board. The word ‘shall’ in Section 15(1) indicates that it is
mandatory for the Board to conduct ‘preliminary
assessment’. The ‘preliminary assessment’ has to be
conducted to assess :-
(1) Child’s mental and physical capacity to
commit alleged offence;
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(2) Child’s ability to understand consequences
of the offence; and
(3) the circumstances in which the child
allegedly committed the offence.
102. Fourthly, after the preliminary assessment,
the Board is required to further determine whether it would
deal with the case of the child itself or transfer him to the
Children’s Court.
103. The aforesaid mandatory requirements are
to be carefully conducted while determining whether a child
should be transferred to the Children’s Court to be tried as
an adult or not. The legislature has provided that for the
purpose of preliminary assessment the Board may take
assistance of an experienced psychologist or psycho-social
worker or other experts.
104. It needs to be kept in mind at this
juncture that Section 14(3) of the Act of 2015 obligates that
preliminary assessment in case of ‘heinous offences’ under
Section 15 should be completed within three months by the
Board from the date of first production of the child before
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the Board.
105. If the Board is satisfied on preliminary
assessment that the matter should be disposed of by the
Board then the Board shall follow the procedures, as far as
may be, for trial in summons case under the CrPC. In case,
the Board after preliminary assessment under Section 15 of
the Act passes an order that there is need for trial of such
child as an adult, it may order for transfer of the case to the
Children’s Court having jurisdiction to try such offence.
106. Now, the stage is set for answering the
first and the second questions : “(i) Under which provision
of law, a child, who has completed or is above the
age of 16 years and is alleged to have committed a
‘heinous offence’ can maintain his application for
release on bail during the pendency of preliminary
assessment by the Board under Section 15 of the Act
of 2015 ?” ; and “(ii) Under which provision of law, a
child, who has completed or is above the age of 16
years and is alleged to have committed a ‘heinous
offence’ can maintain his application for release on
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bail after the transfer of his case to the Children’s
Court for trial by the Board ?”
107. The Act of 2015 is a complete code in
itself. The legal proposition that a special act (the Act of
2015 in the present case) shall override the provisions of the
general act (CrPC) is unexceptionable. At this stage, it would
be profitable to refer to Sections 4 and 5 of the CrPC, which
are set out hereinbelow :-
“Section 4. Trial of offences
under the Indian Penal Code and other
laws.- (1) All offences under the
Indian Penal Code(45 of 1860) shall be
investigated, inquired into, tried, and
otherwise dealt with according to the
provisions hereinafter contained.
(2) All offences under any other law
shall be investigated, inquired into, tried,
and otherwise dealt with according to the
same provisions, but subject to any
enactment for the time being in force
regulating the manner or place of
investigating, inquiring into, trying or
otherwise dealing with such offences.
Section 5. Saving.- Nothing
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contained in this Code shall, in the absence
of a specific provision to the contrary,
affect any special or local law for the time
being in force, or any special jurisdiction or
power conferred, or any special form of
procedure prescribed, by any other law for
the time being in force.”
108. A conjoint effect of Section 4(2) read with
Section 5 of the CrPC is that all offences, whether under the
Indian Penal Code or under any other law, have to be
investigated, inquired into, tried, and otherwise dealt with
according to the provisions of the CrPC, unless there be an
enactment regulating the manner or place of investigating,
inquiring into, trying or otherwise dealing with such offences,
in which case an enactment will prevail over those of CrPC.
The jurisdiction under Section 4 of the CrPC is
comprehensive and to that extent till no valid machinery is
set up under any Act for investigation or trial, the jurisdiction
of the machinery provided under the CrPC cannot be said to
have been excluded.
109. As a natural corollary, since the Act of
2015 is a special act, which contains provision for bail, the
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same shall prevail over those of the CrPC. From a close
reading of Section 12, it would be evident that it is the only
provision under the Act of 2015, which deals with grant of
bail to a child in conflict with law. Section 12 does not debar
a child, who has completed or is above the age of 16 years
and is alleged to have committed a ‘heinous offence’ from
maintaining his application for release on bail during the
pendency of preliminary assessment by the Board under
Section 15 of the Act of 2015 or from maintaining an
application for release on bail after the transfer of his case to
the Children’s Court for trial.
110. For the reasons aforestated, a child,
who has completed or is above the age of 16 years
and is alleged to have committed a ‘heinous offence’
can maintain his application for release on bail under
Section 12 of the Act of 2015 during the pendency of
preliminary assessment by the Board under Section 15
of the Act of 2015.
111. For the same reasons, a child, who
has completed or is above the age of 16 years and is
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alleged to have committed a ‘heinous offence’ can
maintain his application for release on bail under
Section 12 of the Act of 2015 after the transfer of his
case to the Children’s Court.
112. The first and second questions for
determination are answered, accordingly.
113. At this stage, in order to determine the
remaining issues one has to keep in mind Section 18 of the
Act of 2015, which provides that where the Board is
satisfied on inquiry that a child, irrespective of his age, has
committed a ‘petty offence’, or a ‘serious offence’, or a child
below the age of 16 years has committed a ‘heinous
offence’, then, notwithstanding anything contrary contained
in any other law for the time being in force, and based on
the nature of offence, specific need for supervision or
intervention, circumstances as brought out in the social
investigation report and past conduct of the child, the Board
may, if it so thinks fit, pass any of the dispositional order, as
discussed in clauses (a) to (g) of Section 18 (1) of the Act of
2015.
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114. Additionally, the Board may also pass
orders, as indicated in Section 18(2) (i) to (v) of the Act of
2015.
115. Further Section 18(3) of the Act of 2015
provides that where the Board, after preliminary assessment
under Section 15 of the Act of 2015, comes to the
conclusion that there is need for trial of the child as an adult,
it may order, transfer of the trial of the case to the
Children’s Court having jurisdiction to try such offences.
116. The sixth question framed by us is in two
parts. The first part is “What is the scope of Section
19(1)(i) of the Act of 2015 in connection with the
trial of a child as an adult ?” and the second part is
“Whether the provisions of Section 19 of the Act are
mandatory or the Children’s Court has to compulsorily
follow the recommendations of the Board made under
Section 15 read with Section 18(3) of the Act of
2015?”
117. The answer to the above question will also
be in two parts.
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118. Upon a case of a child having been
transferred to the Children’s Court, a duty has been cast
upon the Children’s Court to further decide about the
suitability of the child to be tried as an adult.
119. The words used in Section 19(1)(i) and
19(1)(ii) give two options to the Children’s Court. First, to
try the transferred child as an adult and second not to deal
with child as an adult.
120. The Children’s Court is required to record
its reason while arriving at a conclusion whether the child
should be treated as a child or as an adult, in view of Rule
13 (6) of the Rules.
121. In case, the Children’s Court decides
to deal with child as a child, it has to conduct an
inquiry as a Board following the procedures for trial of
summons case in accordance with the provisions of
Section 18 as would appear from the words used in
Section 19(1)(i) of the Act of 2015.
122. In case, it decides to try the child as
an adult, it shall follow the procedures, as prescribed
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by the CrPC for the purpose of trial by Sessions Court
and pass appropriate orders after trial without
prejudice to the provisions of Sections 19 and 21 of
the Act considering special ‘needs of the child’ the
tenets of ‘fair trial’ and maintaining a ‘child friendly’
atmosphere as provided under Section 19(1)(i) of the
Act of 2015.
123. The aforesaid discussion answers the first
part of the sixth question.
124. Having analysed scope of Section 19(1)(i)
of the Act of 2015, now let us examine the second part of
sixth question framed by us : “whether the provisions of
Section 19 of the Act of 2015 are mandatory or the
Children’s Court has to compulsorily follow the
recommendations of the Board made under Section 15
read with Section 18(3) of the Act of 2015?”.
125. The opening expression used in Section
19(1) is “after the receipt of preliminary assessment from
the Board under Section 15, the Children’s Court may
decide” gives an impression that the Children’s Court may
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or may not decide in terms of Section 19 whether or not
there is need for trial of the child as an adult.
126. However, if Section 19(1)(i) of the Act of
2015 is read together with Rule 13(6) of the Rules framed
by the Central Government, which stipulates that the
Children’s Court shall record its reason while arriving at a
conclusion whether the child is to be treated as an adult or
as a child, it would be evident that the provisions of Section
19(1) are not optional.
127. The expression used in Rule 13(6) of the
Rules is ‘shall’ and thus mandates the Children’s Court to
record its reason while arriving at a conclusion whether the
child is to be treated as an adult or a child.
128. Hence, the answer to the second part
of sixth question is that the provisions of Section
19(1) of the Act of 2015 are mandatory. The
Children’s Court cannot dispense with the requirement
of deciding as to whether there is need to try the
transferred child as an adult or to deal with the
transferred child as a child. In other words, the
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Children’s Court has to compulsorily follow the
recommendations of the Board made under Section 15
read with Section 18(3) of the Act of 2015.
129. Thus, the second part of sixth question for
determination is answered, accordingly.
130. The provisions under Section 19 mandates
that Children’s Court shall ensure that the final order, with
regard to a child in conflict with law, shall include an
individual care plan for rehabilitation of child, including
follow-up by the probation officer or the District Child
Protection Unit or a social worker. The Children’s Court is
also required to ensure that the child, who is found to be in
conflict with law, is sent to a Place of Safety till he attains
the age of 21 years, thereafter, the person shall be
transferred to a jail.
131. Proviso to Section 19(3) of the Act of
2015 provides that the reformative services including
educational services, skill development, alternative therapy
such as counselling, behaviour modification therapy, and
psychiatric support shall be provided, to the child during the
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period of his stay in the Place of Safety.
132. Section 19(4) of the Act of 2015 provides
that the Children’s Court shall ensure that there is periodic
follow-up report every year by the probation officer or the
District Child Protection Unit or a social worker to evaluate
the progress of the child in place of safety and to ensure
that there is no ill-treatment to the child in any form.
133. Section 19(5) of the Act of 2015 provides
that reports under sub-section (4) shall be forwarded to the
Children’s Court for record and follow-up, as may be
required.
134. On a reading of Section 19 of the Act of
2015 in isolation, it would appear that the Children’s Court
may order for long period of stay in each case insisting stay
of the child in Place of Safety till he attains the age of 21
years and, thereafter, he shall be transferred to jail.
However, if we read Section 19 with Section 20, the
impression would be quite different.
135. Section 20 of the Act of 2015 provides
that when a child in conflict with law attains the age of 21
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years and is yet to complete term of his stay, then the
Children’s Court shall provide for a follow-up by the
probation officer or the District Child Protection Unit or a
social worker or by itself. The purpose of follow-up is to
evaluate if the child has undergone reformative changes and
if the child can be a contributing member of the society.
Such evaluation has to be based on the progress records of
the child under Section 19(4) of the Act of 2015 along with
evaluation. Such evaluation has to be made only if the child
has attained the age of 21 years, but has yet to complete
the term of stay.
136. Section 20 of the Act of 2015 empowers
the Children’s Court to release a child from the Place of
Safety without being sent to jail on attaining the age of 21
years. Now, at this stage, what would be relevant to be kept
in mind is that though ‘heinous offences’ include offences for
which the minimum punishment under the Indian Penal Code
or any other law is imprisonment for 7 years or more, on
attaining age of 21 years, the Children’s Court may release
the child on such condition as it deems fit which includes
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appointment of a monitoring authority for the remainder of
the prescribed term of stay. Thus, the minimum
imprisonment of 7 years or more in the definition of ‘heinous
offences’ is for the purpose of determining as to which
matters may be transferred to the Children’s Court.
137. Section 21 of the Act of 2015 provides
that no child in conflict with law shall be sentenced to death
or for life imprisonment without the possibility of release for
any such offence either under the provisions of the Act or
under the provisions of Indian Penal Code or any other law
for the time being in force.
138. Section 22 of the Act of 2015 provides
that despite anything contrary contained in CrPC or any
preventive detention law for the time being in force, no
proceeding shall be instituted and no order shall be passed
against any child under Chapter VIII of the said CrPC.
139. Chapter VIII of the CrPC deals with
preventive measures that may be taken by the police in
maintaining law and order. This Chapter’s title is ‘security for
keeping the peace and for good behaviour’ and contains
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elaborate provisions on the powers of the Executive
Magistrate to take measures with a view to prevent
commission of offence of breach of peace or disturbance of
public tranquility.
140. Eventually, preventive measures are
prohibited against children including passing of sentence to
execute a bond with or without sureties for keeping the
peace. The measures provided in Chapter VIII of the CrPC,
which are to be taken mostly by the Executive Magistrate are
completely prohibited in case of children in conflict with law.
In other words, the Act of 2015 bars any role of the
Executive Magistrate vis-a-vis children.
141. Section 23 of the Act of 2015 provides
that in spite of anything contained in Section 223 of the
CrPC or any other law for the time being in force, no joint
proceeding shall be conducted of a child alleged to be in
conflict with law with a person who is not child. It also
provides that if during inquiry by the Board or by the
Children’s Court, the person alleged in conflict with law is
found to be not a child then that person shall not be tried
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along with child.
142. Having analysed the ambit and scope of
the provisions prescribed under Sections 18 to 23 of the Act
of 2015 in extenso, the stage is set for determining the
seventh question, i.e., : “what is the scope of application
of the provisions of CrPC after the Board transfers the
trial of the case to the Children’s Court having
jurisdiction to try such offences and the Children’s
Court decides that there is a need for trial of the child
as an adult ?”.
143. On a perusal of the provisions prescribed
under Section 18(3) of the Act of 2015, it is quite clear that
it provides for transfer of the ‘trial’ of the case to the
Children’s Court by the Board after preliminary assessment.
144. Here, the word ‘trial’ under Section 18(3)
of the Act is of extreme importance. The transfer is made by
the Board to the Children’s Court only for the purpose of
‘trial’ and nothing else.
145. It is well settled position in law that in
case of ‘trial’ before the Sessions Court, the trial shall be
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treated to have commenced when charges are framed under
Section 228 of the CrPC.
146. We have seen hereinabove that under
Section 19 of the Act of 2015, after the receipt of
preliminary assessment report, the Children’s Court has to
decide as to whether there is a need for ‘trial’ of the child as
an adult as per the provisions of the CrPC or there is no
need for ‘trial’ of the child as an adult. The expression “as
per the provisions of the Code of Criminal Procedure, 1973”
used in Section 19(1)(i) of the Act of 2015 refers to
applicability of the provisions of the CrPC in the matter of
trial of the child as an adult.
147. Rule 13 of the Rules prescribes procedure
in relation to Children’s Court and monitoring authority. Rule
13(7) of the Rules provides that where the Children’s Court
decides that there is no need for ‘trial’ of the child as an
adult, shall decide the matter itself and, it may conduct
inquiry as if it were functioning as a Board and dispose of
the matter in accordance with the provisions of the Act and
the Rules. However, Rule 13(8) of the Rules provides that
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where the Children’s Court decides that there is a need for
‘trial’ of the child as an adult, it shall follow the procedure
prescribed by the CrPC of ‘trial’ by Sessions Court and
maintaining a ‘child friendly’ atmosphere.
148. Thus, Section 18(3) read with Section
19(1)(i) of the Act of 2015 and Rule 13(7) and (8) of the
Rules would make it evident that in case the Children’s Court
decides that there is a need for ‘trial’ of the child as an adult,
it shall follow the procedure prescribed by the CrPC of ‘trial’
by Sessions Court.
149. The CrPC provides four types of trial. They
are:-
(i) Trial before a Court of Sessions;
(ii) Trial of warrant cases by Magistrates;
(iii) Trial of summons cases by Magistrate; and
(iv) Summary trials.
150. Sections 225 to 237 deal with warrant
cases by a Court of Sessions, Sections 238 to 250 deal with
warrant cases by Court of Magistrates, Sections 251 to 259
provide procedure for ‘trial’ of summons cases by
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Magistrates and Sections 260 to 265 make provisions
relating to summary trials.
151. Under the scheme of the Act of 2015, as
far as the Children’s Court is concerned, only ‘heinous
offences’ can be transferred to it for the purposes of ‘trial’ by
the Board. The ‘heinous offences’ defined under the Act of
2015 are those, which prescribe minimum punishment of 7
years or more under the Indian Penal Code or any other law
for the time being in force.
152. Situated, thus, in our view, the scope
of application of the provisions of CrPC, after the
Board transfers the ‘trial’ of the case to the Children’s
Court to try such offences and the Children’s Court
decides that there is a need for ‘trial’ of the child as
an adult, is that while holding the ‘trial’, the Children’s
Court would follow the procedures prescribed in the
CrPC for holding trial before a Court of Sessions. In
other words, in course of trial the proceedings
prescribed in Chapter XVIII from Sections 225 to 237
of the CrPC, which deal with trial of warrant cases by
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a Court of Sessions would only be applicable while
trying a child as an adult subject to exceptions
indicated under the Act of 2015.
153. The seventh question for determination is
answered, accordingly.
154. Now, what remains to be answered is the
the fifth question, i.e., “whether an appeal under Section
101(5) of the Act of 2015 or an application under
Section 439 of the CrPC would be maintainable before
the High Court by any person aggrieved by the order
granting or rejecting bail by the Children’s Court ?”
155. While considering the above question, we
would like to analyse the provisions prescribed in Section
101 of the Act of 2015.
156. Section 101 of the Act of 2015 deals with
appellate jurisdiction under the Act. Section 101(1) of the
Act of 2015 provides that subject to the provisions of the
Act, any person aggrieved by an order of the Board may
prefer an appeal before the Children’s Court within 30 days
from the date of such order. Thus, the right to appeal is
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vested with the child in conflict with law, the victim and the
State under the aforesaid provision.
157. Proviso to Section 101(1) of the Act of
2015 deals with the power to condone the delay caused in
filing the appeal. It is clarified that Court of Sessions may
entertain the appeal even after the expiry of the said period
of 30 days, if it is satisfied that the appellant was prevented
by sufficient cause from filing the appeal in time and such
appeal shall be decided within a period of 30 days. Hence, if
an appeal is preferred after the expiry of the period of 30
days, an application for condonation of delay in filing the
appeal can be filed before the Court of Sessions and not
before the Children’s Court. In order to ensure speedy
disposal of such an application for condonation of delay, the
proviso states that such an appeal should be decided within a
period of 30 days.
158. Section 101(2) of the Act of 2015 makes
provision for appeal against the order of the Board passed
under Section 15 of the Act of 2015, after making
preliminary assessment into a ‘heinous offence’ of a child in
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conflict with law. It lays down that an appeal against an
order of preliminary assessment shall lie before the Court of
Sessions. It provides that in deciding the appeal against the
preliminary assessment findings, the Court of Sessions may
take the assistance of experienced psychologists and medical
specialists, but these psychologists and medical specialists
should not be the same whose assistance was availed of by
the Board in making preliminary assessment under the Act
of 2015.
159. It is of salience to note that Section
101(2) of the Act of 2015 mentions that an order relating to
transfer of children after preliminary assessment under
Section 15 is appealable before the Court of Sessions
meaning thereby that suitability of the child being
transferred or not for trial as an adult can be made by the
Court of Sessions at this stage under the appellate
jurisdiction. It is further important to note that even if no
appeal is filed and a case is transferred for trial to the
Children’s Court by the Board, the Children’s Court is
mandated to make its own inquiry to determine the
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suitability of the child to stand trial as an adult under Section
19(1)(i) of the Act of 2015.
160. It is noteworthy that Rule 13 of the Rules
has created some confusion regarding forum of appeal. Rule
13 refers to the ‘Children’s Court’ as the appellate court
under Section 101(1) and (2) of the Act of 2015. Since
Rules are subordinate legislation, in case of any conflict with
the enabling Act, the provisions of the Act would prevail.
Hence, an appeal against the order of the Board passed after
making preliminary assessment into a ‘heinous offence’
under Section 15 of the Act of 2015 would be maintainable
before the Court of Sessions and not before the Children’s
Court.
161. It would be interesting to note here that
Section 101(2) of the Act of 2015 does not mention, who
can file the appeal. However, when we give a closer look to
Section 15(2) of the Act of 2015, we notice that the order of
the Board to dispose of the matter by itself shall be
appealable under the said provision. This would mean that
an order passed by the Board not transferring the child in
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conflict with law after preliminary assessment to the
Children’s Court shall also be appealable under Section
101(2) of the Act of 2015. Thus, under Section 101(2) of
the Act of 2015, against the order passed under Section 15
of the Act not only a child in conflict with law, but also a
victim has been conferred with the right to appeal.
162. Section 101(3) of the Act of 2015
prohibits appeal against an order of acquittal made by the
Board except in case of a child alleged to have committed a
‘heinous offence’, who has completed or is above the age of
16 years.
163. Section 101(4) of the Act of 2015
prohibits filing of second appeal from any order of the Court
of Sessions.
164. The term ‘appeal’ is not defined in the Act
of 2015. However, it is well settled position in law that an
appeal is a rehearing by a superior court on both law and
fact. In an appeal, the court of superior jurisdiction
determines the question whether the order of the court from
which the appeal is brought was right on the material which
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the court had before it.
165. Section 101(5) of the Act of 2015
provides that any person aggrieved by the order of the
Children’s Court may file an appeal before the High Court in
accordance with the procedure specified in the CrPC. Thus,
the right to appeal is vested with child in conflict with law,
the State and the victim whosoever is aggrieved by the order
of the Children’s Court. It is the only provision in the Act of
2015 under which an aggrieved person can challenge any
order, including order granting or rejecting an application for
bail by the Children’s Court.
166. Section 1 (4) of the Act of 2015 gives an
overriding effect to the Act over any other legislation or
legislative provisions, i.e., inconsistent with it. It states that
the provisions of the Act shall apply to all matters of children
in need of care and protection and children in conflict with
law, including- (i) apprehension, detention, prosecution,
penalty or imprisonment, rehabilitation and social reintegration
of children in conflict with law; (ii) procedures
and decisions or orders relating to rehabilitation, adoption,
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re-integration, and restoration of children in need of care
and protection.
167. The non obstante clause gives primacy to
the Act in all matters concerning a child in conflict with law
and a child in need of care and protection.
168. In view of non obstante clause, every
definition of offence, every punishment and every procedure,
which is inconsistent with any of the provisions of the Act of
2015 shall have no effect in matters concerning a child in
conflict with law.
169. Since a right to appeal is neither a natural
nor an inherent right and is a creature of statute, there
cannot be any right of appeal, unless it is expressly provided
in the statute. It is a substantive right and not merely a
procedural right.
170. In view of clear language of the provisions
prescribed under Section 101(5) of the Act of 2015, any
person aggrieved by the order of the Children’s Court may
challenge the order by way of an appeal before the High
Court. The phrase ‘any order’ would also include order
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granting or rejecting bail.
171. Chapter XXIX in the CrPC containing
Sections 372 to 394 deals with the provisions of appeal
arising from any judgment or order of a criminal court.
Section 372 of the CrPC provides that no appeal shall lie
from any judgment or order of a criminal court except as
provided for by the CrPC or by any other law for the time
being in force. There is no provision in Chapter XXIX of the
CrPC enabling any person aggrieved by an order granting or
rejecting bail by the Children’s Court to file an appeal during
the pendency of the trial.
172. Thus, Section 439 of the CrPC cannot be
invoked as an appeal against an order granting or rejecting
bail by the Children’s Court.
173. Reference to the words “with the
procedure specified in the Code of Criminal Procedure, 1973”
used in Section 101(5) of the Act of 2015 cannot be
misconstrued as conferring right to any person aggrieved by
an order granting or rejecting bail by the Children’s Court to
file an application for grant of bail under Section 439(1) of
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the CrPC or an application for cancellation of bail under
Section 439(2) of the CrPC before the High Court.
174. Since the Act of 2015 provides for an
appeal against any order of the Children’s Court and the non
obstante clause provision of Section 1(4) of the Act of 2015
gives primacy to the Act, any application under provisions of
the CrPC either for grant of bail under Section 439(1) or for
cancellation of bail under Section 439(2) would be
impermissible in law.
175. In the backdrop of the position of law
as discussed above, the fifth question for
determination is answered by us holding that against
an order granting or refusing bail passed by the
Children’s Court, no application for grant of bail under
Section 439(1) or for cancellation of bail under
Section 439(2) of the CrPC shall lie before the High
Court. The remedy open to the person aggrieved under
such circumstances is only an appeal under Section
101(5) of the Act of 2015.
176. We are further of the view that the
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‘phrase’ “in accordance with the procedure specified in
the Code of Criminal Procedure” does not allude to
application of the entire CrPC to the Act of 2015. The
said reference to the CrPC in Section 101(5) of the
Act of 2015 only means that the procedure, and not
the substantive Sections, prescribed under Chapter
XXIX shall apply to the appeal that could be filed
under the said Section. To clarify further, the appeal,
in terms of Section 101(5) has to be considered on the
basis of material available on the record, i.e., material
produced before the Board under Section 13 of the
Act of 2015 and considerations arrived at in terms of
Section 12 of the Act of 2015 for the purpose of grant
of bail and not the considerations of grant of bail in
terms of Sections 437, 438 and 439 of the CrPC. The
reference in Section 101(5) to “procedure specified in
the Code of Criminal Procedure” does not enlarge the
scope of sub-sections to create a substantive right in
terms of Section 439 of the CrPC in Section 101(5) of
the Act of 2015.

177. The fifth question for determination is
answered, accordingly.
178. We, thus, sum up the references by
holding as under:-
Q. (i). Under which provision of law, a
child, who has completed or is above the age
of 16 years and is alleged to have committed
a ‘heinous offence’ can maintain his
application during the pendency of
preliminary assessment by the Board under
Section 15 of the Act of 2015?
A. For the reasons recorded hereinabove, a
child, who has completed or is above the age of
16 years and is alleged to have committed a
‘heinous offence’ can maintain his application for
release on bail under Section 12 of the Act of
2015 during the pendency of preliminary
assessment by the Board under Section 15 of the
Act of 2015.
Q. (ii). Under which provision of law, a
child, who has completed or is above the age

of 16 years and is alleged to have committed
a ‘heinous offence’ can maintain his
application for release on bail after the
transfer of his case to the Children’s Court
for trial by the Board ?
A. For the reasons recorded hereinabove, a
child, who has completed or is above the age of
16 years and is alleged to have committed a
‘heinous offence’ can maintain his application for
release on bail under Section 12 of the Act of
2015 after the transfer of his case to the
Children’s Court.
Q. (iii). Whether the powers conferred
on the Board in the matter of bail to a
person, who is apparently a child alleged to
be in conflict with law are also available to
the Children’s Court ?
A. In view of clear, unambiguous and specific
stipulation in Section 8(2) of the Act of 2015,
which provides that the powers conferred on the
Board under the Act may also be exercised by the

High Court and the Children’s Court in the matter
of grant of bail to a person, who is apparently a
child and is alleged to have committed a bailable
or non-bailable offence, the powers conferred on
the Board under the Act of 2015 are also
available to the Children’s Court and the High
Court.
Q. (iv). Whether seriousness of the
offence alleged is a ground for rejecting the
bail in case of a child in conflict with law?.
A. Seriousness of the offence alleged cannot
be made a ground for rejecting bail under the Act
of 2015.
Q. (v). Whether an appeal under Section
101(5) of the Act of 2015 or an application
under Section 439 of the CrPC would be
maintainable before the High Court by any
person aggrieved by the order granting or
rejecting bail by the Children’s Court?
A. Against an order granting or refusing bail
passed by the Children’s Court, no application for

bail or cancellation of bail under Section 439(1)
or 439(2) of the CrPC shall lie before the High
Court and against such an order only an appeal
under Section 101(5) of the Act of 2015 would
be maintainable. The ‘phrase’ “in accordance with
the procedure specified in the Code of Criminal
Procedure” does not allude to application of the
entire CrPC to the Act of 2015. The said
reference to the CrPC in Section 101(5) of the
Act of 2015 only means that the procedure, and
not the substantive Sections, prescribed under
Chapter XXIX shall apply to the appeal that could
be filed under the said Section. To clarify further,
the appeal, in terms of Section 101(5) has to be
considered on the basis of material available on
the record, i.e., material produced before the
Board under Section 13 of the Act of 2015 and
considerations arrived at in terms of Section 12
of the Act of 2015 for the purpose of grant of
bail and not the considerations of grant of bail in
terms of Sections 437, 438 and 439 of the CrPC.

The reference in Section 101(5) to “procedure
specified in the Code of Criminal Procedure” does
not enlarge the scope of sub-sections to create a
substantive right in terms of Section 439 of the
CrPC in Section 101(5) of the Act of 2015.
Q. (vi). What is the scope of Section
19(1)(i) of the Act of 2015 in connection
with the trial of a child as an adult? Whether
the provisions of Section 19 of the Act of
2015 are mandatory or the Children’s Court
has to compulsorily follow the
recommendations of the Board made under
Section 15 read with Section 18(3) of the
Act of 2015 ?
A. Upon a case of a child having been
transferred to the Children’s Court, a duty has
been cast upon the Children’s Court to further
decide about the suitability of the child to be tried
as an adult. The words used in Section 19(1)(i)
and 19(1)(ii) of the Act of 2015 give two options
to the Children’s Court. First, to try the

transferred child as an adult and second not to
deal with child as an adult. The Children’s Court is
required to record its reason while arriving at a
conclusion whether the child should be treated as
child or an adult in view of Rule 13 (6) of the
Rules. In case, the Children’s Court decides to
deal with child as a child it has to conduct an
inquiry as a Board following the procedures for
trial of a summons case in accordance with the
provisions of Section 18 as would appear from
the words used in Section 19(1)(i) of the Act of
2015. In case, it decides to try the child as an
adult, it shall follow the procedure as prescribed
by the CrPC for the purpose of trial by Sessions
Court and pass appropriate orders after trial
without prejudice to the provisions of Sections 19
and 21 of the Act of 2015 considering special
‘needs of the child’ the tenets of ‘fair trial’ and
maintaining a ‘child friendly’ atmosphere as
provided under Section 19(1)(i) of the Act of
2015.

The provisions of Section 19(1) of the Act
of 2015 are mandatory. The Children’s Court
cannot dispense with the requirement of deciding
as to whether there is need to try the transferred
child as an adult or to deal with the transferred
child as a child.
Q. (vii). What is the scope of application
of the provisions of CrPC after the Board
transfers the trial of the case to the
Children’s Court having jurisdiction to try
such offences and the Children’s Court
decides that there is a need for trial of the
child as an adult?
A. The procedure followed by the Children’s
Court for trial of a child as an adult would be of a
warrant case and the proceedings in Chapter
XVIII prescribed under Sections 225 to 237 of
the CrPC, which deal with warrant cases by a
Court of Sessions only would be applicable while
trying a child as an adult, subject to exceptions
indicated under the Act of 2015.

179. The above answers to the questions
framed by us, answer the questions of law referred by the
learned Single Judge. Hence, we remit these appeals to the
learned Single Judge to pass appropriate orders in
accordance with law.
Birendra Kumar, J. I agree.

(Ashwani Kumar Singh, J.)
( Birendra Kumar, J.)

 DATE 09.09.2019

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