Reciprocating towards the concept of "Doli Incapax": Keeping in view the Juvenile Delinquency
This article on ‘Reciprocating towards the concept of “Doli Incapax”: keeping in view the juvenile delinquency’ is written by Amisha Priyadarshini Dash and Adish Jain and aims at understanding the concept of Doli Incapax with reference to juvenile delinquency and juvenile justice. I. Introduction “A nation’s children are its supremely important assets and the nation’s future lies in… Read More »
This article on ‘Reciprocating towards the concept of “Doli Incapax”: keeping in view the juvenile delinquency’ is written by Amisha Priyadarshini Dash and Adish Jain and aims at understanding the concept of Doli Incapax with reference to juvenile delinquency and juvenile justice.
I. Introduction
“A nation’s children are its supremely important assets and the nation’s future lies in their proper development. An investment in children is indeed an investment in the future; a healthy and educated child is the active and intelligent citizen of tomorrow.”
-Rabindra Nath Tagore
The Juvenile Justice (Care and Protection of Children) Act,2015 (here) was enacted on 15 January 2016. The act came in the light of adding a new provision, wherein the children in conflict of law of particular age group which is 16-18 were dealt with comprehensively. Additionally, another objective is to aim for the Adoption law.
The Principle of Children with conflict has its core rationale coming from, understanding the maturity of the consequences of the offence, and therefore dealt with a little caution. To add to the objective is, such children should not suffer whole life just as the result of an unintentional act. As it is the strong presumption by the law, “children are not even capable of committing the offence, as they are not mature enough to reason it.”
Therefore, complete immunity is provided to the infant below 7 years of age under Section 82 read with Section 6 of the Indian Penal Code.
Also, partial immunity is given to Children under Section 83[1] read with Section 6 of the Indian Penal Code, which says ‘Act of a child above seven and under twelve of immature understanding.- Nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge the nature and consequences of his conduct on that occasion.’
It is evident that law gives partial immunity on the ground that whether the child has the maturity to understand the nature of the offence. And the Court determines the same by the conduct of the child before, during and after the offence is committed.
Section 105 of the Indian Evidence Act,1872[2] put the onus to prove lies on the accused if the accused claims to be under any type of exception of the Indian Penal Code. Herein in the case, where the child pleads to be under any exception, he must prove the same in the Hon’ble Court.
The core reasons for the legislature to come up with a whole new act to justify with children in the commission of the offence. Also, when minor offenders share the cell with a major, it makes them more vulnerable from the exposure of criminal mindset. Moreover, before the Juvenile Justice Act, presiding officers normally made the punishment lenient for the purpose of minors, which usually became objected to in many cases. Another problem while dealing with Juveniles under IPC was, it does not mention children from age 12-18 years. Consequently, it became the need of the hour for the separate proper act for juveniles.[3]
But the need was to establish a whole new set of rules and guidelines for these immature offenders, to make the distinction from the adult offender’s results in the formation of the Juveniles Justice Act. [4]
The jurisprudential point presumes that the law presumes a child to be less mature and thereby not given imprisonment more than three years. Also, given Bail as the right which furnishes with or without bond.[5]
But the problem with the solution was the spontaneous development and exposure to the nova technologies, children are maturing at an even faster rate than before. That has to become more innovative to suffice the need for minor mistakes without punitive measures. There is an utter need for this window in the existing law for exceptions in cases where juveniles are convicted for committing crimes of a heinous nature.
The Act, therefore, constitutes the Juvenile Justice board under Section 4(2) of the act, for taking the enquiry of the juvenile. The board has the members, one of them is a Principal Magistrate with at least 3 years of age, the second is a District Judge, and two social workers, one of them being the woman. Also, the case board confers the power of the Judicial Magistrate of the First class.
The world is growing at such a pace, that it ensures that everyone living is much updated, including all the age groups from an infant to a senior citizen. The time was different when the children were unaware of their surroundings, but nowadays the Juveniles are all known for their capability to commit any crime (mens rea and Actus reas); their ability to comprehend the consequences of the offence committed; the circumstances in which the offence they committed. And these are the necessary parameters that the Board needs to assess under Section 15[6] of the Act in deciding the Juvenile as an offender and further for the trial.
As children of age group 16-18 are repeatedly offending, and misusing the bail as the right, there is again a need of amending some stringent provisions in the Act. And therefore, induction of some provisions which are making explicit differentiation between serious and heinous crimes therein in the act and same is passed by Rajya Sabha on 28th of July.
“What this means is that for a juvenile to be tried for a heinous crime as an adult, the punishment of the crime should not only have a maximum sentence of seven years or more, but also a minimum sentence of seven years.”
II. Key Issue
The key issue in the Amendment was whether it was a legal right to vest the power of adoption to the DM, which is usually vested to the Civil Court. This same is dealt with in the affirmative manner, as there is a delay in the procedure of the court, therefore such vesting of power is making the process speedy for the parents and children. The Bill provides that instead of the court, the district magistrate (including additional district magistrate) will perform these duties and issue all orders.
III. Instances in which a child can be tested as an adult
The Act introduced the concept of three categories of cases:
- Minor Offenses- include cases in which the maximum penalty under the IPC or other law at the time applies to imprisonment for up to three years;
- Serious Offences- include punitive charges under the IPC or other laws that are enforcing, imprisonment for between three and seven years;
- Heinous Offenses- include punitive charges under the IPC or other law at the time of imprisonment for seven years or more.
Subsequently, the issue of creating a difference between Heinous and Serious offence wherein, any offence which is categorised as Heinous which has its punishment more than seven-year, and other, where the Offence has the imprisonment form three years to seven years. So, The Court ordered that these offences should be categorized as serious offences.
Under the Act, it is evidently mentioned that a juvenile offender, between the ages of 16-18 may be prosecuted as an adult in any of the following circumstances, as well as any lesser offences under any other applicable offence, in which the minimum sentence is 7 years or more.
Following are the list of offences-
- Section 121 of IPC[7]– Waging or attempting or abetting to wage war against Government of India
- Section 195 of IPC[8]– Giving or fabricating false evidence with intent to procure conviction of offence with imprisonment for life or imprisonment.
- Section 302 of IPC[9]– Punishment for murder
- Section 304B of IPC[10]– Dowry death
- Section 376 of IPC[11]– Rape etc.
For these offences, the minimum time period for punishment is 7 years or 10 years up to Lifetime Imprisonment or Death Penalty.
In one of the cases where three juveniles were charged under Section 307 of Bombay High Court. As it was referred to Children’s Court by the Board challenged said & observed as follows-
Wherein Section 307 in The Indian Penal Code[12] (here)
Attempt to murder —Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to [imprisonment for life] or to such punishment as is hereinbefore mentioned.
Attempts by life convicts —[When any person offending under this section is under sentence of [imprisonment for life], he may, if hurt is caused, be punished with death.] [13]
The statement given was-
“that the IPC or any other applicable law must impose a minimum sentence of seven years’ sentence so that the case may be considered a ‘serious offence’. Under section 307 of the IPC (Attempted murder), no minimum penalty is imposed but the penalty can be extended to 10 years and be fined.”
“Because of the minimum penalty of at least 7 years or more, section 307 of the IPC, therefore, cannot fall into the category of serious offences.” As marked by Justice Bhatkar.
“People need to understand that every juvenile delinquent is not Hannibal the cannibal. Few are psychotic with criminal tendencies. But the bulk of them turn to crime when they are brutalized,”.
IV. Conclusion
To Conclude, Juvenile Justice is probably the area that’s the ripest for reform, in the nice liberal sense of the word, simply because there’s no getting around the fact that a teenage brain is not an adult brain.
1. Amisha Priyadarshini Dash, Student of School of Law Christ (Deemed to be University), Delhi NCR &
2. Adish Jain, Student of Symbiosis Law School, Noida.
References
[1] Indian Penal Code, 1860, Available Here.
[6] THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2015. Act 2015, Available Here.
[7] India Penal Code, 45 Act of 1860 Section 121
[8] India Penal Code, 45 Act of 1860 Section 195
[9] India Penal Code, 45 Act of 1860 Section 302
[10] India Penal Code, 45 Act of 1860 Section 304B
[11] India Penal Code, 45 Act of 1860 Section 376
[12] India Penal Code, 45 Act of 1860 Section 307
[13] Supra 6
