Theme: Crimes by Children

Can my 5 or 6 year old child be seen as a criminal in the eyes of the law?

Children under 7 years are completely excluded from being prosecuted under criminal law, and children between ages 7 to 12 are excluded if the courts thought that they did not understand the consequence of their actions. The term used in such cases is ‘doli incapax’ which means a child is incapable of understanding the consequences of a crime.

What jail are minors sent to?

While the inquiry is going on, minors can only be detained in Observation Homes or a Place of Safety. The Board has to tell them how long you will be detained in the order. To know which institution is denoted an ‘Observation Home’ or a ‘Place of Safety’, information can be obtained from the relevant State Government website.

How does the Board decide when to detain me?

The Board has the power to detain you, though in most cases you get bail. If the Board decides to allow for your release on bail, your parents or guardians are supposed to submit an undertaking in a certain form. If you are unable to satisfy the bail conditions for a week, then the Board is required to modify these to help you. The Board may decide to deny bail if this is against your interests. For instance, if this would bring you into contact with criminals or expose you to moral, physical or psychological danger.

Can the police arrest me without telling my parents?

The police have a duty to tell your parents or guardians why you have been arrested. They can ask the police for the charges under which you have been arrested.

If the police have registered an FIR (or first information report), they have a duty to give your parents or guardians a copy of this FIR. An FIR is the document prepared by the police when they get any information about a crime that has occurred.

How long can the police hold a child in jail?

A child can never be kept in a police lockup or regular jail. The police must bring you before the Board within 24 hours of apprehending/detaining you. If the police do not release you immediately on bail, you can only be kept in an Observation Home until you are taken to the Board (within 24 hours). The police are also supposed to inform a child welfare officer who is supposed to accompany you to the Board for the first hearing.

Can children be arrested?

Yes, the police can arrest children if they believe they have committed a crime. Typically, police stations will have a child welfare protection officer and in each district and city, there will be at least one special juvenile police unit. When the police arrest a child on suspicion of committing a crime, this should normally be done by a Special Juvenile Police Unit. If a regular police officer arrests the child, then the child should immediately be placed under the care of the Juvenile Police Unit, or a designated Child Welfare Police Officer.

The police can also arrest children who have run away from an institution where they were placed under the Juvenile Justice Act, such as an Observation Home, Special Home or Place of Safety.

In certain circumstances (for example, with respect to habitual thieves), the Magistrate can order that adults be detained in prison if they do not execute a bond for good behaviour or peace. Even though arrests of children are allowed, the Magistrate cannot order a similar detention with respect to children.

What are the guidelines to arrest a minor?

India’s legal framework gives special treatment and protection to children below the age of 18 who are in conflict with the law or who commit crimes. Every district has one special juvenile police unit (SJPU) and regular police stations have a Child Welfare Protection Officer (CWPO). Usually, the SJPU has the power of arresting juveniles. In case, A normal police officer arrests the child, the child shall be immediately placed under the protection of the SJPU or the CWPO.1 The child shall continue to remain under the protection of CWPO, who shall be responsible for the child just as a parent/guardian, before the child is brought to the Juvenile Justice Board (JJB) within 24 hours of his/her arrest. In case, the child cannot be produced before the Board due to the child being arrested during odd hours or distance, the child shall be kept by the CWPO in the Observation Home or in a fit facility.

After the arrest is made, the following guidelines are to be followed by the officers to ensure the welfare of Juveniles.

  1. No FIR shall be registered except in cases of heinous offences or where a crime is alleged to have been committed jointly with adults. In all other cases, the alleged offence shall be recorded in the officer’s daily diary.
  2. The arresting officer shall be in plain clothes and not in uniform while arresting the child.
  3. The officer arresting the child shall not place him or her in handcuffs, chain or use force on the child.
  4. The child shall be informed about the reason for the child’s arrest.
  5. The child shall not be placed in a police lock-up or lodged in the jail.
  6. The child shall not be asked to sign any statement.
  7. The CWPO or the SPJU shall inform the parent or guardian of such a child about the child’s arrest and provide them with the address of the JJB before which the child is to be produced  and direct them to be present before the JJB.
  8. A child shall not be forced to confess and shall be interviewed only at the SJPU or at a child friendly premises or a child friendly corner in the police station which does not give the feel of a police station.

The child should be provided with proper medical assistance, assistance of an interpreter or a special educator or any other assistance that the child may require.2

  1. The Juvenile Justice (Care And Protection Of Children) Act, 2015 NO. 2 OF 2016.[↩]
  2. Ministry Of Women And Child Development Notification, Ministry of Women and Child Development, (2016) available at http://cara.nic.in/PDF/english%20model%20rule.pdf.[↩]

Juvenile Justice Board

The Juvenile Justice Board is the body that deals with children who have been accused of committing a crime. They are expected to help the child who has committed the crime by:

  • Dealing with the child in the least intimidating and most child-friendly manner possible
  • Ensuring that the child is fully informed so that they can participate in the legal process
  • Ensuring access to legal aid for the child
  • Providing a translator/interpreter if the proceedings are happening in a language that the child does not understand
  • Providing care to the child who has committed the crime by involving the Child Welfare Committee in the matter

FIR Registration

Please see our classification of crimes to understand if an FIR needs to be registered.

Petty Offences: No registration of an FIR is required.

Serious Offences: No registration of an FIR is required (They are supposed to record it in the general diary along with the social background report for these two types of offences).

Heinous Offence: An FIR needs to be filed against a child.

Arresting a child

There are certain rules the police have to follow while arresting a child offender. They are:

  • The police cannot handcuff or exert any force when they arrest a child
  • The police officer must immediately inform the parents or guardians
  • The police officer must tell the child the location of the Juvenile Justice Board where they will be taken.

Punishment for Children

The punishments for Petty Offences and Serious Offences can include:

  • Give the child a firm warning, then let them go home while simultaneously counselling the parents.
  • Ordering the child to attend group counselling sessions
  • Ordering the child to perform supervised community service
  • Ordering the child’s parents or guardians to pay a fine
  • Releasing the child on probation. The parents or guardians will have to pay a bond for up to 3 years that makes them responsible for the child’s behaviour. The responsibility can also be handed over to a ‘fit person’ or ‘fit facility,’ which is a person or government organization or NGO that is prepared to accept responsibility for the child.
  • Sending the child to a Special Home for up to 3 years.

If the Board thinks that keeping the child in the Special Home would be against their best interests or the best interests of other children in that home, then the child could be sent to a Place of Safety. The Board may also order the child to attend a school or vocational training, or prevent the child from going to a specified place.

The law focuses on making sure children are rehabilitated and the Board or the Children’s Court has to develop and oversee an Individual Care Plan to help this happen. An Individual Care Plan is a development plan addressing issues like health, nutrition, emotional, and educational needs.

Children’s Court

If the Board decides that a child should be tried as an adult after a Preliminary Assessment, it sends the case to a Children’s Court. The Children’s Court may be an existing Sessions Court that deals with child-specific laws, or a special court set up to deal with crimes under the Juvenile Justice Act. The Children’s Court may then do one of two things:

They may decide that the child must be treated as an adult for the trial, and then conduct a regular trial and pass final judgment. While the Children’s Court can generally pass the maximum sentence for a Heinous Offence (a sentence of more than 3 years), it cannot sentence the child to the death penalty or life imprisonment without the possibility of release.

They may decide that there is no need to try the child as an adult and may conduct an inquiry like the Board did, and pass orders under Section 18 of the Juvenile Justice Act.

In all proceedings, the Children’s Court must make sure the atmosphere is child-friendly. It must also ensure that the child is sent to a Place of Safety if they are detained during proceedings. If the child is found guilty of having committed a Heinous Offence, they will be sent to the Place of Safety until they are 21 years old, after which they can be sent to jail. The child should have access to services like education and skill development while they are at the Place of Safety.

Preliminary Assessment of a child’s crime

A preliminary assessment is conducted when a heinous offence is committed by a child over the age of 16. This is an attempt to find out whether the child was mature enough to understand their action and the consequences of them when they committed the crime. If the child was mature enough, the proceedings need to be conducted in the same way an adult would be. The Board can take the help of trained psychologists and experts to arrive at its conclusions but must complete the inquiry within 3 months.

 

Rehabilitation of Children

The main aim of rehabilitation is to make sure that a child can be put back under the care of their parent or guardian.

If this is not possible, authorities have to make sure the child is put under the care of a child-care institution that is recognised under the Juvenile Justice Act. These institutions have many services to help to rehabilitate children.

The responsibility to care for children doesn’t end when they reach the age of 18 and leave their institution. Children leaving an institution can be given financial support to help them integrate back into society.