WHY SHOULD WE TREAT A JUVENILE DIFFERENTLY?


INTRODUCTION:- The philosophy of the Juvenile Justice System is to ensure that all children who are in conflict with law or in need of care and protection, are provided with nurturing environment, one that is sensitive to their needs and requirements, offers complete scope for reformation as required and for overall development. Why should we treat a kid differently than an adult? A juvenile does not have the level of maturity, thought process, decision-making, experience, strength or wisdom that an accused presumably has. Further, a child can not defend himself. A fortiori, a juvenile is still growing up. The Juvenile Justice system contemplates the immediate production of the apprehended juvenile before the Juvenile Justice Board, with little scope for police investigation. Before the first hearing, the police is only required to submit a report of the juvenile’s social background, the circumstances of apprehension and the alleged offence to the Board (Rule 11(11)). In cases of a non-serious nature, or where apprehension of the juvenile is not in the interests of the child, the police are required to intimate his parents/guardian that the details of his alleged offence and his social background have been submitted to the Board (Rule 11(9)). If you go through the ruling reported in the case of Dr. Subramanian Swamy And Ors vs Raju Thr.Member Juvenile Justice Board, [ CRIMINAL APPEAL NO.695 OF 2014 (Arising Out of SLP (Crl.) No.1953 of 2013)] (28 March, 2014),the Hon’ble Supreme Court clearly explained the difference between Juvenile Justice System and Criminal Justice System.

The following principles are important to note while dealing with juveniles:-
1. The words such as ‘accused’, ‘arrest’, ‘charge’ ‘charge sheet’, ‘remand’ etc., should not be used in case of case relating a juvenile in conflict with law.
2. If Child Welfare Committee or Juvenile Justice Board is not sitting, the juvenile in conflict with law must be kept in a Children’s Home/Fit Institution/Observation Home; or to hand over his/her parents/guardian
3. A Child/juvenile in conflict with law should not be taken into police custody or kept in the police station between sunset and sunrise.
4. Police officer dealing with juveniles should not be in uniform when dealing with a child/juvenile in conflict with law.
5. If a juvenile in conflict with law is taken into custody for any alleged offence CJWO to ensure that the juvenile in conflict with law should not beaten or abused or ill-treated.
6. A police officer should not coerce a juvenile/child in conflict with law to give statement or confession.
7. If juvenile in conflict with law is released on bail, he/she should not be asked to report and sign at the police station.
8. Juvenile/parent/guardian should not be referred to a private lawyer. (BUT juvenile should be about his right to legal aid.)
9. All offences relating to juveniles in conflict with law are bailable in nature and therefore bail should be granted to juvenile immediately. If juvenile in conflict with law is not released on bail, he/she should be sent to the Observation Home.
10. In case of Juvenile justice Board is not sitting, juvenile in conflict with law should be housed in Observation Home.
11. Offences committed by a juvenile in conflict with law should not be held against him/her when apprehended for offences committed as an adult.
12. The names and photographs of children/juveniles in conflict with law should not be published in print or visual media.
13. A case of juvenile should NOT be tried jointly with a case of an adult/accused.

Arrest in Criminal Justice System: Arrest of accused persons is regulated under Chapter V of the CrPC. The police are empowered to arrest a person who has been accused of a cognizable offence if the crime was committed in an officer’s presence or the police officer possesses a reasonable suspicion that the crime was committed by the accused. Further, arrest may be necessary to prevent such person from committing a further crime; from causing disappearance or tampering with evidence and for proper investigation (S.41). Persons accused of a non-cognizable offence may be arrested only with a warrant from a Magistrate (S.41(2)

Juvenile Justice System: The Juvenile Justice Rules provide that a juvenile in conflict with the law need not be apprehended except in serious offences entailing adult punishment of over 7 years (Rule 11(7)). As soon as a juvenile in conflict with the law is apprehended, the police must inform the designated Child/Juvenile Welfare Officer, the parents/guardian of the juvenile, and the concerned Probation Officer (for the purpose of the social background report) (S.13 & R.11(1)). The juvenile so apprehended is placed in the charge of the Welfare Officer. It is the Welfare Officer’s duty to produce the juvenile before the Board within 24 hours (S. 10 & Rule 11(2)). In no case can the police send the juvenile to lock up or jail, or delay the transfer of his charge to the Welfare Officer (proviso to S.10 & R.11(3)). Bail Criminal Justice System: Chapter XXXIII of the CrPC provides for bails and bonds. Bail may be granted in cases of bailable and non-bailable offences in accordance with Ss. 436 and 437 of the CrPC. Bail in non- bailable offences may be refused if there are reasonable grounds for believing that the person is guilty of an offence punishable with death or imprisonment for life, or if he has a criminal history (S.437(1)). JJ System: A juvenile who is accused of a bailable or non-bailable offence “shall” be released on bail or placed under the care of a suitable person/institution. This is subject to three exceptions: (i) where his release would bring him into association with a known criminal, (ii) where his release would expose him to moral, physical or psychological danger, or (iii) where his release would defeat the ends of justice. Even where bail is refused, the juvenile is to be kept in an observation home or a place of safety (and not jail).

Trial and Adjudication:- The trial of an accused under the criminal justice system is governed by a well laid down procedure the essence of which is clarity of the charge brought against the accused; the duty of the prosecution to prove the charge by reliable and legal evidence and the presumption of innocence of the accused. Culpability is to be determined on the touchstone of proof beyond reasonable doubt but if convicted, punishment as provided for is required to be inflicted with little or no exception. The accused is entitled to seek an exoneration from the charge(s) levelled i.e. discharge (amounting to an acquittal) mid course.
Inquiry in Juvenile Justice System: Under S.14, whenever a juvenile charged with an offence is brought before the JJ Board, the latter must conduct an ‘inquiry’ under the JJ Act. A juvenile cannot be tried with an adult (S.18).

Determination of the age of the juvenile:- Determination of the age of the juvenile is required to be made on the basis of documentary evidence (such as birth certificate, matriculation certificate, or Medical Board examination).
The Board is expected to conclude the inquiry as soon as possible under R.13. Further, the Board is required to satisfy itself that the juvenile has not been tortured by the police or any other person and to take steps if ill-treatment has occurred. Proceedings must be conducted in the simplest manner and a child-friendly atmosphere must be maintained (R.13(2)(b)), and the juvenile must be given a right to be heard (clause
(c)). The inquiry is not to be conducted in the spirit of adversarial proceedings, a fact that the Board is expected to keep in mind even in the examination of witnesses (R.13(3)). R.13(4) provides that the Board must try to put the juvenile at ease while examining him and recording his statement; the Board must encourage him to speak without fear not only of the circumstances of the alleged offence but also his home and social surroundings. Since the ultimate object of the Act is the rehabilitation of the juvenile, the Board is not merely concerned with the allegations of the crime but also the underlying social causes for the same in order to effectively deal with such causes.
The Board may dispense with the attendance of the juvenile during the inquiry, if thought fit (S. 47). Before the Board concludes on the juvenile’s involvement, it must consider the social investigation report prepared by the Welfare Officer (R.15(2)).

The inquiry must not prolong beyond four months unless the Board extends the period for special reasons due to the circumstances of the case. In all non-serious crimes, delay of more than 6 months will terminate the trial (R.13(7)).
Sentencing: The Board is empowered to pass one of the seven dispositional orders u/s 15 of the JJ Act: advice/admonition, group counseling, community service, payment of fine, release on probation of good conduct and placing the juvenile under the care of parent or guardian or a suitable institution, or sent to a Special home for 3 years or less. Where a juvenile commits a serious offence, the Board must report the matter to the State Govt. who may keep the juvenile in a place of Safety for not more than 3 years. A juvenile cannot be sentenced to death or life imprisonment.

Some Important rulings as to Juveniles:
1. M.C. Mehta Vs State of Tamilnadu, W.P. ( C ) No. 465 of 1986
2.Delhi Commission for Women vs Delhi police, W.P. (Crl.) No. 696 of 2008.
3.Court on its own motion vs Govt. of NCT of Delhi (W.P. ( c )No. 8801 of 2008)
4. Virender vs The State of NCT of Delhi )
5. Om Prakash Vs State of rajasthan & anr. (.L.P. (Crl.) No. 2411 of 2011. )

Post-trial Processes Juvenile Justice System: No disqualification attaches to a juvenile who is found to have committed an offence. The records of his case are removed after the expiry of period of appeal or a reasonable period.
S. 40 of the Juvenile Justice Act provides that the rehabilitation and social reintegration of the juvenile begins during his stay in a children’s home or special home. “After-care organizations” recognized by the State Govt. conduct programmes for taking care of juveniles who have left special homes to enable them to lead honest, industrious and useful lives.

Differences between Juvenile Justice System and Criminal Justice System
1. FIR and charge-sheet in respect of juvenile offenders is filed only in ‘serious cases’, where adult punishment exceeds 7 years.
2. A juvenile in conflict with the law is not “arrested”, but “apprehended”, and only in case of allegations of a serious crime.
3. Once apprehended, the police must immediately place such juvenile under the care of a Welfare Officer, whose duty is to produce the juvenile before the Board. Thus, the police do not retain pre- trial custody over the juvenile.
4. Under no circumstances is the juvenile to be detained in a jail or police lock-up, whether before, during or after the Board inquiry.
5. Grant of Bail to juveniles in conflict with the law is the Rule.
6. The JJ board conducts a child-friendly “inquiry” and not an adversarial trial. This is not to say that the nature of the inquiry is non-adversarial, since both prosecution and defence submit their cases. Instead, the nature of the proceedings acquires a child-friendly colour.
7. The emphasis of criminal trials is to record a finding on the guilt or innocence of the accused. In case of established guilt, the prime object of sentencing is to punish a guilty offender. The emphasis of juvenile ‘inquiry’ is to find the guilt/innocence of the juvenile and to investigate the underlying social or familial causes of the alleged crime. Thus, the aim of juvenile sentencing is to reform and rehabilitate the errant juvenile.
8. The adult criminal system does not regulate the activities of the offender once s/he has served the sentence. Since the JJ system seeks to reform and rehabilitate the juvenile, it establishes post- trial avenues for the juvenile to make an honest living.

CONCLUSION:-
Best interest of juvenile is primary consideration in all acts done or action taken in respect of a juvenile in conflict with law. A Police officer who investigates the case of juvenile in conflict with shall ensure that a child victim is medically examined at the earliest preferably within 24 hours in accordance with section 164A of Cr.P.C. If necessary, as per circumstances of the case, a police may take assistance of a psychologist or psychiatrist or counselor for the welfare of juvenile. A child victim shall not be kept in police station overnight on any pretext. The parents of juvenile or any other person on whom the juvenile reposes trust and confidence should be allowed to remain present with juvenile. A child friendly atmosphere should be created in case of dealing with a juvenile in conflict with law. Let me conclude this article with the following words “Unless appropriate due process of law is followed, even the juvenile who has violated the law may not feel that he is being fairly treated and may therefore resist the rehabilitative efforts of court personnel.” In re Gault (1967), 387 U.S.
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