JJ Act | Child Alleged To Be In Conflict With Law Can't Be Lodged In Jail Even During Inquiry To Determine His Age: Allahabad High Court

The Allahabad High Court has held that under the Juvenile Justice Act 2015 a person accused who claims to be child at time of commission of offence, cannot be sent to jail or police lockup even during an inquiry regarding determination of his age either by a Court or the Juvenile Justice BoardIn doing so the court held that a child in conflict with law or alleged to be in conflict with law cannot be lodged in jail till they attain 21 years of age. The bench of Justice Salil Kumar Rai and Justice Sandeep Jain referred to the JJ Act and said:"A perusal of Section 10 show that in no case can a child in conflict with law be placed in a police lock up or lodged in a jail. A person who claims himself to be a child under the Act, 2015 cannot be lodged in a jail or police lockup even during inquiry regarding his age either by the Court or the Board. A child in conflict with law can be lodged in jail only when he has committed a heinous offence and is also above the age of sixteen years on the date of the commission of offence and the Board after preliminary assessment under Section 15 of the Act, 2015 and the Children's Court under Section 19(1)(i) decide that there is need for trial of the child as an adult and further, the child found to be in conflict with law has attained the age of twenty one years but is yet to complete the term of stay at a place of safety".The court said that Section 9(4) JJ Act states that a person who claims before a Court that he was a child on the date the offence was committed, is required to be kept in protective custody during the process of inquiry, the Court while inquiring into his claim may place him in a place of safety.“In short, a child in conflict with law or alleged to be in conflict with law cannot be lodged in a jail till he attains twenty one years of age either during the inquiry regarding determination of his age or when he is found to be a child in conflict with law.”Petitioner no.1, accused, along with his elder brother and mother had allegedly killed the eldest brother. All accused were arrested and detained in Naini Central Jail since 2017. During Trial, petitioner no.1 claimed his date of birth to be 13.12.2002. when the Principal of his school was summoned, he stated that on the date of the offence, petitioner was 14 years, 3 months and 19 days old. Thereafter, the matter was referred to the Juvenile Justice Board which held the petitioner to be 14 years, 3 months and 19 days old on the date of the offence. Though the order was supplied to the Trial Court, the petitioner was not released from detention. Accordingly, petitioner no.2, claiming to be a social worker approached the High Court seeking petitioner no.1's release. Section 2(13) defines a child in conflict with law as a child who is alleged or is found to have committed an offence and who has not completed eighteen years of age on the date of commission of such offence.The Court held that “…any person who has committed an offence when he was below the age of eighteen years shall be treated as a child during the process of inquiry even if he has completed eighteen years of age when he was apprehended or completes the age of eighteen years during the course of inquiry by the Board or the Children's Court or any other agency.”The Court then referred to Section 9 of the Act which provides the procedure to be followed by a Magistrate who has not been empowered under the JJ Act. Sub-section (1) provides that when the Magistrate is of the opinion that the accused before it is a child (below 18years of age), he must record such opinion and forward the case to the Board under the Act. Sub-section (2) of Section 9 provides that where the accused makes a claim of being a child at the time of commission of offence before a Court, the same shall make inquiry and call for evidence and form opinion. This claim has to be looked into even after final disposal of the case. Section 9(3) provides that if the Court finds that the accused was a child on the date of commission of the offence, then the child must be forwarded to the Board, and any sentence passed by the Court will have no effect. Further, sub-section (4) of Section 9 provides that if required such accused must be placed in protective custody while determination regarding age is being made. Section 10 provides that a child alleged to be in conflict with law cannot be placed in a police lockup or lodged in a jail under any circumstances. The Court held“It is apparent from a reading of Sections 9(2) and 9(3) of the Act, 2015 that the claim of being a child shall be decided by the Court and not the Board if the claim is raised before the Court. The phrase 'appropriate orders' in Section 9(3) refers to orders under Sections 14 and 18 of the Act, 2015 and does not confer power on the Board to determine the age of a person who raises his claim of being a child before a Court.”It further held that the Board can only determine age for the purpose of Section 9(1) and...

JJ Act | Child Alleged To Be In Conflict With Law Can't Be Lodged In Jail Even During Inquiry To Determine His Age: Allahabad High Court

Upasna Agrawal

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