As per the recent report of the National Council for Protection of Child Rights (2013) that there are approximately 32,000 children a year at any point of time as ‘Children in conflict with the law‘. Within this smaller universe, looking at NCRB data for 2012 the report find that 8569 children were apprehended for murder, attempt to murder, rape and theft which is about 25.45 %. Further, as against all forms of crimes recorded each year, NCRB‘s compilation of data reflects that juvenile crimes for the years 2001 and 2012 accounted for 16509 and 33668 which is only 0.9 % and 1.3 % percentage respectively of the total crimes committed in the country. The fact that there is only a miniscule number of children in conflict with law and that too that they have not been given protection has to be factored in while discussing either reduction in age or increase in punishment of the juvenile (NCPCR, 2013).
Juvenile delinquency during 2012
As per the data provided by NCBR, in 2012 there was increase in the number of juveniles apprehended for committing almost all the types of cognizable offences over 2002 and quinquennial average during that period (Table 1). From the table it appears that the increase in the juvenile apprehended for various offences in absolute terms is very less than what appears in percent. For example there were only 33 cases of counterfeiting recorded during 2012 but it shows increase of 1000 percent over 2002. Further there was 333.3 % increase in 2012 in death caused due to negligence over such cases recorded during 2002. Most of these cases were associated with rash motor vehicle driving. Table 1.1 Comparison of select offences committed by juvenile delinquents during 2007-12 in India
|No. |Type of Offence |Quinquennial Average |Offences Recorded in|Percent increase |Percent increase | | | |offences recorded |2012 |over QA average |over crime recorded | | | |during 2007-11 | | |in 2002 | |1 |Murder |765
|990 |29.4 |86.4 | |2 |Attempt to commit murder |580 |876 |51.5 |86.8 | |3 |Preparation and assembly for |62 |92 |47.9 |100 | | |Dacoity | | | | | |4 |Dacoity |137 |174 |176.2 |176.2 | |5 |Robbery |516 |767 |270.5 |270 | |6 |Death due to negligence |161 |260 |61.3 |333.3 | |7 |Counterfeiting |14 |33 |132.4 |1000 |
Causes of juvenile delinquency:
Of the various factors affecting the juvenile delinquency socio-economic conditions of the children are considered to be of most importance. In the year 2012 a total of 39822 delinquents were apprehended under various offences. It was found that there is direct correlation with the economic status of the delinquent. With increasing income of the family there was reduction in the number of delinquents apprehended for various offences. Fig. indicates that during 2012 of the total delinquents apprehended in the country 52 % were belonging to lower income group having annual income of less that Rs. 25,000/-. The percentage of delinquents reduced with the increase in the annual income of the parents. Thus there were only 0.84 % delinquents belonging to upper income group having annual income of more than Rs. 3,00,000/-. Similar situation was observed in Gujarat where of the total (2406) delinquents apprehended 71 % belonged to the lower income group having annual family income less than Rs. 25,000/- while in the upper income group (annual income more than Rs.3,00,000) there was no child recorded to be in conflict with law.
As per the data provided by NCRB (2012) delinquency in the children is also
associated with the educational status of the children. The children who have never attended any school (illiterates) and those who have attended the school for a short period (having received primary education) represent 60 % of the total delinquents (illiterates -14 % and primary education- 46 %). As against earlier reports (Mishra—-), the NCBR report of 2012 states that during 2012 the percentage of illiterates in the total delinquents was a mere 14 %. The percentage of delinquent having received secondary education than was reported to be 31 %. The percentage of delinquents who have received higher education was least. Figure 1 shows the overall picture of educational status of the delinquents apprehended during 2012 in India. Similar situation was observed in the case of delinquents apprehended
Also the age and sex of the delinquent plays a very important role. During 2012 of all the juveniles apprehended for various offences 66.5 % were belonging to the age group 16-18 years. Moreover, there was increase of 22.2 % in the juveniles of age group 16-18 years apprehended under IPC and other SLL in 2012 over 2011. Also of the total juveniles apprehended since 2001 to 2012 the percentage of girls has never exceeded 7 %. It was 5.9 % in 2012. The increase in number of juveniles of the age group 16-18 years associated with various crimes including murder; attempt to commit murder; rape; kidnapping; dacoity; burglary; theft; etc., and the gang rape of a girl in Delhi had led many activists to approach the Apex Court with a petition to reduced the age of juvenile as defined in S. 2(k) of the Juvenile Justice (Care and Protection) Act, 2002.
The event of gang rape of a 23-year-old girl in Delhi in December 2012 wherein a juvenile was one of the accused had created uproar. Among other things, petitions were filed in India’s Supreme Court to examine the constitutional validity of a provision of the Juvenile Justice (Care and Protection of Children) Act, 2000 that treats a person younger than 18 years as a minor for crimes committed. The Supreme Court refused to reduce the age of juvenile from 18 to 16 years and dismissed a plea that minors involved in heinous crimes should not be protected under the law. On 17th July 2013 a
bench headed by then Chief Justice Altamas Kabir said that interference in Juvenile Justice Act is not necessary and dismissed a batch of PILs which were filed in the aftermath of the December brutal gang rape and murder case in which a minor was also allegedly involved. The fact that of the percentage of delinquents in the total crimes committed in the country is around 1.0 % and that at the age of 16-18 years boys are more aggressive justifies the argument of keeping the age of juvenile as per the existing provisions of the JJ Act. An argument put forward by the sociologist that the child in care of parents is less likely to become delinquent than those having no parents or living with guardians or homeless is not applicable in cases of juveniles apprehended for committing various offences during 2012. There were more than 81 % of the delinquents (Fig.—-) living with their parent who were apprehended during 2012. Thus living without parents is not a cause for Disposal of delinquent’s cases:
To ensure speedy proceedings, the JJ Act specifies that proceedings “shall be completed within a period of four months from the date of [their] commencement,” but with exceptions if the “period is extended by the Board having regard to the circumstances of the case and in special cases after recording the reasons in writing for such extension.” This discretion permits cases to languish in the system indefinitely (Rickard, 2008). The figures given by NCBR indicates that there are a total of 10721 cases pending with various JJ Boards that accounts for 36.84 % of the cases admitted in these boards. Thus there is a need for quick disposal of pending cases. The data provided by NCBR (2012) show that there are a few states where the rate of disposal of cases is very high (e.g. Tamilnadu- 81 %) where as in other states it is not so (Haryana – 38.15 %). In states like Jammu and Kashmir the disposal of cases is very slow (12.2 %).
View of Apex Court on punishment
Another important question that requires urgent attention is that large numbers of cases of juvenile were tried in regular Court having criminal jurisdiction and where ever the courts have found the accused guilty, sentences have been awarded. The provision of S. 7 of the JJ Act regarding determination of the age of the accused is overlooked in such cases. At later stages when the accused comes to know about his/her right as juvenile fresh appeals are filed in the High Courts or the Supreme Court. In one of such cases M B Lokur J. of the Apex court had to decide three issues (Jitendra Singh @ Baboosing and ors. Vs. State of Uttar Pradesh on 13th July 2013- unreported). 1. Whether the appellant was a juvenile or a child as defined by Section 2(k) of the Juvenile Justice (Care and Protection of Children) Act, 2000 on the date of occurrence of the offence he was charged with. 2. Whether the conviction of the appellant can be sustained on merits and, if so, the sentence to be awarded to the appellant. 3. Whether any appropriate measures can be taken to prevent the recurrence of a situation, such as the present, where an accused is subjected to a trial by a regular Court having criminal jurisdiction but he or she is later found to be a juvenile.
Considering the facts of the case, provisions of the JJ (Care and Protection) Act 2002 and after taking in to consideration past judgements of the apex courts Lokur J. decided that: 1. The documentary evidences (school admission register) and medical examination proves beyond doubt that the appellant was about 17 years of age when the incident had occurred and that he had set up a claim of being a juvenile or child soon after his arrest and before the charge sheet was filed. In other words, the appellant was a juvenile or a child within the meaning of that expression as defined in Section 2(k) of the Act. 2. Also majority of children dealt with under the JJA come from the lowest wealth strata and do not have a birth certificate. The medical report provides a range of age and does not determine it accurately giving a wide discretion to the judges who determine the age using various factors (Ved Kumari, 2009). 2. Based on the evidences presented by the prosecution it was held by both the sessions and the High Court that the case of causing dowry death had convincingly been made out against the appellant. Therefore, the conviction was upheld by the Apex Court. 3. While awarding the sentence to the appellant who was juvenile on the date of commission of crime, the Apex Court noted that there existed many views: a. Conviction was upheld but the sentence quashed (Jayendra V. State of Uttar Pradesh (1981) 4 SCC 149). Similarly in Bhoop Ram v. State of U.P. (1989) 3 SCC 1, Pradeep Kumar v. State of U.P., 1995 Supp (4) SCC 419, Bhola Bhagat and other v. State of Bihar, (1997) 8 SCC 720, Upendra Kumar v. State of Bihar, (2005) 3 SCC 592, Gurpreet Singh v. State of Punjab, (2005) 12 SCC 615, Vijay Singh v. State of Delhi, (2012) 8 SCC 763. b. In another category of cases the Apex court had upheld the conviction but the sentence awarded was modified to the period of detention already undergone e.g. Satish @ Dhanna v. State of Madhya Pradesh, (2009) 14 SCC 187 and in Dharambir v. State (NCT of Delhi), (2010) 5 SCC 344. c. In a third category of cases wherein the juvenile against whom conviction was proved, appeal against his conviction was allowed and the entire case remitted to the Juvenile Justice Board for disposal in accordance with law e.g. Hari Ram v. State of Rajasthan, (2009) 13 SCC 211 and Daya Nand v. State of Haryana, (2011) 2 SCC 224. d. In yet another category of cases the apex court upheld the conviction but sent the entire records of the case to Juvenile Justice Board for awarding suitable punishment e.g. Ashwani Kumar Saxena v. State of Madhya Pradesh, (2012) 9 SCC 750.
Considering the provision made in Section 20 of the Juvenile Justice (Care and Protection of Children) Act, 2000 in the instant case the matter was referred back to the Juvenile Justice Board for award of punishment.
Regarding the preventive measures to be taken to avoid such situation the Apex Court observed that every Magistrate before whom an accused is produced to ascertain, in the first instance or as soon thereafter as may be possible, whether the accused person is an adult or a juvenile in conflict with law. The reason for this, obviously, is to avoid a two-fold difficulty: first, to avoid a juvenile being subjected to procedures under the normal criminal law and de hors the Act and the Rules, and second, a resultant situation, where the ‘trial’ of the juvenile is required to be set aside and quashed as having been conducted by a court not having jurisdiction to do so or a juvenile, on being found guilty, going ‘unpunished’. This is necessary not only in the best interests of the juvenile but also for the better administration of criminal justice so that the Magistrate or the Sessions Judge (as the case may be) does not waste his time and energy on a trial’. 1. Every Magistrate must ascertain that when an accused is produced before him, and if the Magistrate has any iota of doubt about the juvenility of an accused produced before him, Rule 12 provides that a Magistrate may arrive at a prima facie conclusion on the juvenility, on the basis of his physical appearance. In our opinion, in such a case, this prima facie opinion should be recorded by the Magistrate. An inquiry into the juvenility of the accused must be done at an early stage preferably on first production. 2. Due to the poor socio-economic condition of the juvenile the court observed that it is difficult to expect a juvenile in conflict with law to know his rights upon apprehension by a police officer and if the precautions that have been suggested are taken, the best interests of the child and thereby of society will be duly served. Therefore, it may be presumed, by way of a benefit of doubt that because of his status, a juvenile may not be able to raise a claim for juvenility in the first instance and that is why it becomes the duty and responsibility of the Magistrate to look into this aspect at the earliest point of time in the proceedings before him.
We are of the view that this may be a satisfactory way of avoiding the recurrence of a situation such as the one dealt with. 3. Attention may be drawn to Section 41-B of the Code which requires a police officer making an arrest to prepare a memorandum of arrest which shall be attested by at least one witness who is a member of the family of the person arrested or a respectable member of the locality where the arrest is made. The police officer is also mandated to inform the arrested person, if the memorandum of arrest is not attested by a member of his family, that he has a right to have a relative or a friend named by him to be informed of his arrest. 4. Every police officer making an arrest is also obliged to inform the arrested person of his rights including the full particulars of the offence for which he has been arrested or other grounds for such arrest (Section 50 of the Code), the right to a counsel of his choice and the right that the police inform his friend, relative or such other person of the arrest. 5. According to the provisions of S. 54 of the CrPC when any person is arrested, it is obligatory for the arresting authority to ensure that he is got examined by a medical officer in the service of the Central or the State Government or by a registered medical practitioner. The medical officer or registered medical practitioner is mandated to prepare a record of such examination including any injury or mark of violence on the person arrested. 6. If these procedures are followed, the probability of a juvenile, on apprehension, being shown as an adult and sent to judicial custody in a jail, will be considerably minimized. If these procedures are followed, as they should be, along with the requirement of a Magistrate to examine the juvenility or otherwise of an accused person brought before him, subjecting a juvenile in conflict with law to a trial by a regular Court may become a thing of the past. 7. The Court also directed that whenever an accused, who physically appears to be a juvenile, is produced before a Magistrate, he or she should form a prima facie opinion on the juvenility of the accused and record it. If any doubt persists, the Magistrate should conduct an age inquiry as required by Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 to determine the juvenility or otherwise of the accused person. In this regard, it is better to err on the side of caution in the first instance rather than have the entire proceedings reopened or vitiated at a subsequent stage or a guilty person go unpunished only because he or she is found to be a juvenile on the date of occurrence of the incident.”
Over the years the number of children coming in conflict with law is increasing and percentage children in the age group of 16-18 years apprehended for committing various offences is also on rise. Poor economic condition of the children coupled with no education or less education is considered to be the important factors for this. The demand for reducing the age of children coming in conflict with law from 18 years to 16 years has rightly been refused by the Apex Court. The Apex Court has also suggested that the provisions of Ss 41-B, 50 and 54 of the CrPC be followed strictly to avoid the trial of juvenile with regular Court. If the Magistrate before whom the delinquent is produced has slightest doubt about the age of the accused, he must ascertain it as per the provisions of S-7 of the Juvenile
Justice (Care and Protection) Act, 2002. References:
1. Altmas Kabir CJI, S S Nijjar J. And J. Chelameswar J (2013). Writ petition (C) N0. 10 of 2013. Judis.nic.in/supremecourt/imgd1.aspx?filename=40584. Last accessed on 13th Aug. 2013. 2. Mishra B N (1991) Juvenile Delinquency and Justice System, Ashish Publishing House, New Delhi, India. 3. National Crime Records Bureau (2013) Crime in India 2012, www.ncbr.gov.in/ Last accessed on 13th Aug. 2013. 4. NCPCR (2013) Status of Children in 14-18 Years: Review Of Policy, Programme and Legislative Framework 2012-2013. 5. Rickard Erika (2008) Paying lip service to the silenced: Juvenile Justice in India, Harvard Human Rights Journal 21: 155-166. 6. Supreme Court (2013) Jitendra Singh @ Baboosing and ors. Vs. State of Uttar Pradesh on 13th July 2013- unreported. www.indiankanoon.org/doc/70248453/ Last accessed on 13th Aug. 2013. 7. Ved Kumari (2009) Juvenile justice : Scuring the rights of children during 1998 – 2008. NUJS L. REV.557-572.