By Radhika M
Introduction
Law needs to be lenient sometimes. That leniency can be seen in the treatment of First Time Offenders and Juvenile Offenders (Juveniles), when they are found to be guilty of an offence. Special Care has been given to these categories because the State must protect the life and limb of the youth and they shall not be pushed to jails because of trivial offences. All the efforts must be put in to reforming them, not revenging them.
With this aspect, the Parliament has enacted certain legislations to benefit the first time Offenders and Juvenile offenders.
Provisions under Code of Criminal Procedure, 1973
Section 360 of the Code of Criminal Procedure, 1973 empowers the Court to release a convicted person on probation of good conduct or after due admonition. A person:
- Who is above 21 years of age, convicted of an offence punishable with fine only or with an imprisonment for a term less than seven years,
- Who is either under 21 years of age or a woman, convicted of an offence not punishable with death or imprisonment for life.
Can be released on probation of good conduct if there is no previous conviction proved against him and if the Court thinks it is expedient to do so on the account of age, character and antecedents of the offender.
The Court will also take into consideration of the circumstances which led to the commission of the crime.
He/she may be released on bond, with or without sureties, to appear and receive sentence when called upon during such period (not exceeding three years) as the Court may direct, and in the meantime to keep the peace and be of good behaviour.
As per Section 360(3) of the Code, if any person has been convicted of theft or theft in a building or dishonest misappropriation or cheating or any other offence which is punishable under the Indian Penal code, 1860 with less than two years of imprisonment, the Court may release him after due admonition.
However, such release can be made only if there is no previous conviction proved against him and taking into consideration of his age, character, antecedents or physical or mental condition, nature of the offence and the circumstances which led to the commission of the offence.
The Court shall be satisfied that the offender or his surety has a fixed place of residence or regular occupation in the place for which the Court acts for the observance of conditions. If the offender fails to observe the conditions set out by the Court, it may issue a warrant for his apprehension.
The Probation of Offenders Act, 1958
Probation of Offenders Act was enacted with an intention to save first time Offenders from the clutches of law and to provide them with a chance to reform.
Section 3 and Section 4 of the Act are analogous to the provisions of Section 360 of the Code of Criminal Procedure. Section 3 of the Act speaks about the power of Court to release a convicted person after admonition.
When a person is convicted under
- Section 379 (Punishment for Theft) or;
- Section 380 (Punishment for Theft in dwelling house) or;
- Section 381 (Theft by Servant) or;
- Section 404 (Dishonest Misappropriation of Property possessed by a deceased person at the time of his death) or;
- Section 420 (Punishment for Cheating) of the Indian Penal Code, 1860 or;
any offence punishable with fine only or an imprisonment with a term which is less than two years, he may be released after admonition.
Similarly, under Section 4 of the Act, a person who has been convicted for an offence not punishable with death or imprisonment for life, may be released on probation of good conduct.
While passing an order for release on probation of good conduct, the Court may require him to furnish a bond with or without sureties, to appear and receive sentence when called upon during such period (not exceeding three years) and in meantime to keep good behaviour.
An order to release a convicted person on probation or after admonition will be passed only when the Court is satisfied that there is no previous conviction passed against the offender and it is expedient to do so, while taking into consideration of his character, antecedents, nature of the offence and circumstances that led to the commission of the offence.
Before releasing an offender on probation of good conduct, the Court shall take into consideration of the report of the Probation Officer.
The Court may in addition to any other condition, direct that the offender shall remain under the supervision of the Probation Officer named in the supervision order.
Probation Officers are the officers who are authorised to supervise the persons released on probation by the Court.
As per Section 14 of the Act, Probation Officers shall be appointed by the State Government. The Probation Officer shall be subject to the control of the District Magistrate of the district in whose jurisdiction the offender resides.
The duties of the Probation Officers include the submission of report to the Court regarding the circumstances and home surroundings of the offender, supervise the probationers, assisting them to find a suitable employment and advising them on payment of compensation to the Court etc.
The Court ordering the release of the offender may further require him to pay an amount to compensate the injury caused to a person due to the commission of the crime and to cover the costs of proceeding. This amount may be collected as fine.
As per Section 6 of the Act, imprisonment of persons below twenty one years of age is severely restricted. If a person below twenty one years of age is found guilty of having committed an offence punishable with an imprisonment (not being imprisonment for life), he shall be sentenced to imprisonment only when the Court is satisfied that it is not desirable to deal with him under Section 3 or Section 4 of the Act.
The Court shall record its reasons for doing so. The Court may seek a report from the concerned Probation Officer to reach at a conclusion regarding the physical and mental health of the offender.
The Court may vary conditions specified in the bond entered in to by the offender on an application made by the Probation Officer if it is expedient to do so in the interests of public and the offender. The Court may extend or diminish the duration specified in the bond.
No variation shall be effected in the bond without hearing the offender and his surety. Also, if the Probation Officer makes an application to the Court that the conduct of the offender has been such as to make it unnecessary to keep him under observation, the Court may discharge the bond entered into by him.
If the Court either on the report made by the Probation Officer or otherwise has reason to believe that the offender has failed to observe the conditions in the bond, it may either issue a warrant or summons against him.
When such person appears before the Court, it may either remand him to custody or grant bail whichever it thinks fit.
As per Section 9 of the Act, if the Court after hearing the case finds that the offender failed to observe the conditions in the bond, it may either sentence him for the original offence or may impose penalty where the failure is for first time.
In the case of Ishar Das Vs. State Of Punjab[1] the Court opined that the non-obstante clause in Section 4 of the Act will override and prevail over any other laws, provided that all conditions specified in the Section are met. In the given case, the Court released a person below 21 years of age on probation of good conduct who was charged under the provisions of Prevention of Food Adulteration Act.
The Court also observed that “As the object of Probation of Offenders Act is to avoid imprisonment of the person covered by the provisions of that Act, the said object cannot be set at naught by imposing a sentence of fine which would necessarily entail imprisonment in case there is a default in payment of fine.”
In the case of Arvind Mohan Sinha Vs. Amulya Kumar Biswas[2] , the Court declined to accept the contention that the provisions of Probation of Offenders Act have no application to offences relating to the Customs Act or the “Gold Control” Rules contained in Part XII-A of the Defence of India Rules, 1962.
Even though they deal with serious economic offences and have far reaching impacts, the provisions of the Probation of Offenders Act cannot be disregarded.
The Court observed that “The words of Section 4(1) of the Probation of Offenders Act are wide and would evidently include offences under the customs Act and the Gold Control Rules. The Probation of Offenders Act is a reformative measure, and its object is to reclaim amateur Offenders who, if spared the indignity of incarceration, can be usefully rehabilitated in society”
In the case of Jugal Kishore Prasad Vs. State of Bihar[3] the Court observed that the object of the Act is to prevent youngsters from developing a criminal nature because their association with known criminals in jails. The Court opined that the modern criminal jurisprudence relies upon the reformation of criminals rather than the retributive justice.
First Offenders
Volume III Chapter 21 of the Delhi High Court Rules deals with the legal treatment of first time offenders. It says that persons with no previous conviction history may be released on probation of good conduct by the Magistrates after taking in to consideration of his age, character, nature of the offence etc.
The Court must ensure that the offender or his surety has a fixed place of abode. However, this shall not be applied to the offences under the Excise Act or Opium Act.
Juvenile Justice (Care and Protection of Children) Act, 2015
Juvenile Offenders or children in conflict with law cannot be tried along with adults. This is against the right to have a good childhood and decent upbringing. Children are presumed to be innocent. And they deserve a better treatment from the State as well as society. Even though people have been regularly misusing the provisions of this law, it is still relevant and necessary.
The Act deals with:
- Apprehension, detention, prosecution, penalty or imprisonment, rehabilitation and social re-integration of children in conflict with law,
- Procedures, decisions or orders relating to rehabilitation, adoption, re-integration, and restoration of children in need of care and protection.
Section 2(13) of the Act defines the “child in conflict with law”. A child in conflict with law is a person who is alleged or found to have committed an offence but has not completed eighteen years of age on the date of commission of offence.
As per Section 10 of the Act, when a child in conflict with law is apprehended by police, such juvenile must be placed under the charge of special juvenile police unit or child welfare police officer. Such a child must not be placed in a lockup or jail under any circumstances.
Further, the apprehended juvenile must be produced before the concerned Juvenile Justice Board within 24 years.
As per Section 4(1) of the Act, there must be a Juvenile Justice Board in every district. And the Board shall consist of three members in which, one of the members will be the Principal Magistrate (either Metropolitan Magistrate or Judicial Magistrate of First Class) and two social workers (one of such member shall be a woman).
When the Board is not in sitting, the child in conflict with law must be produced before an individual member. The person who oversees the juvenile will continue to have the responsibility including the maintenance of such child while the order is in force. Such a child can be left in the charge of parents or any other person only when the Board allows the same.
As per Section 12 of the Act, when a juvenile is alleged to have committed an offence (whether bailable or non-bailable) and is produced before the Board, he shall be released on bail, with or without sureties or shall be placed under the care of a Probation Officer or any other competent person.
Such a person may not be released if the Board has reasonable grounds to believe that such a release may expose the child to any association with a known criminal or may pose threat to his physical and psychological well-being or would defeat the ends of justice.
When bail is denied to a person under the Act, he may be placed in the observation home. When a child is unable to fulfil the conditions in the bail within seven days of the order, he may be produced before the Board for the modification of bail conditions.
An inquiry against a child can be done as per the procedure prescribed under the Act and such an inquiry shall be completed within four months. The period may be extended for two months provided that Board shall record its reasons for delay.
Section 2(33) of the Act defines heinous offence. They are offences which are punishable with an imprisonment for a term of seven years or more.
And Section 2(53) of the Act defines serious offences. They are offences which are punishable with an imprisonment of three years to seven years.
Petty offences shall be tried by the Board through summary procedure as set out in the Code of Criminal Procedure.
Serious offences shall be tried in the manner of a summons case. If the offence is a heinous offence and committed by a child below sixteen years of age, then it shall be tried as per the procedure in a summons case. But if a heinous crime is committed by a person above sixteen years age, then a preliminary assessment shall be done by the Board.
The preliminary assessment is an assessment to evaluate the mental and physical capacity of the juvenile to commit such crime, ability to understand the consequences of such crime and circumstances which led to the commission of such crime.
After the preliminary assessment, the Board may either dispose the case itself or may refer such matter to a Children’s Court having jurisdiction, if the Board thinks that such juvenile shall be tried as an adult.
The Children’s Court after analysing the preliminary assessment submitted by the Board may either try such juvenile as an adult as per the provisions of Code of Criminal Procedure or may refer the matter back to the Board for disposal.
However, if the Court decides to try the juvenile as an adult, it shall take note of Section 21 of the Act.
Section 21 mandates that, a child in conflict with law shall not be punished with death or imprisonment for life. The Court shall ensure that the final order shall include an individual care plan for the rehabilitation of child, including a follow up by the Probation Officer or the District Child Protection Unit or a social worker.
The child in conflict with law shall be sent to a place of safety where he shall stay until he reaches the age of twenty years and thereafter, he shall be transferred to jail. Vocational training, education, counselling etc shall be provided to the child during his stay in the place.
There must be a follow up of the child’s behaviour by the Probation Officer or any other authorised person.
When the child attains twenty one years of age, the Children’s Court shall provide for a follow up by the Probation Officer or the District Child Protection Unit or a social worker or by itself, as required, to evaluate if such child has undergone reformative changes and if the child can be a contributing member of the society.
After such follow up, the Court may either release the child or require him/her to complete the remaining term.
The Juvenile Justice Board is empowered to make the following orders in respect of petty offences, serious offences committed by a child and heinous offence committed by a child below the age of sixteen years:
- Releasing the child on admonition.
- Directing the child to participate in group counselling and similar activities.
- Order the child to perform community services under the supervision of an institution or an organisation.
- Order the child or his parents to pay fine.
- Release the child on probation of good conduct.
- Directing the child to be sent to a special home for providing reformative services.
In addition to such orders, the Board may also pass orders relating to:
- Attend school,
- Attend a vocational training centre,
- Attend a therapeutic centre,
- Prohibit the child from visiting, frequenting or appearing at a specified place,
- Undergo a de-addiction programme.
Section 24 of the Act mandates that a person who has been tried and convicted under the provisions of the Act shall not suffer any disqualification, if any, attached to the conviction of such offence.
However, this will not be applicable to a person above sixteen years of age and was tried by a children’s Court.
Legal treatment of Juvenile offenders under Delhi High Court Rules
Volume III Chapter 22 of the Delhi High Court Rules deals with the treatment of juvenile offenders or youthful offenders.
It says that commitment of children to the prisons or reform schools under the age of fourteen years shall be avoided as far as possible. Even though for the purpose of enquiry or trial, such commitment to prisons shall be avoided.
In the Reform Schools, there shall be two divisions, the differentiating criteria being the age of 14 years. They shall be divided into sub divisions, based on their previous convictions. Magistrates shall inspect the reform schools regularly.
Juvenile Offenders who have committed serious offences like murder and who didn’t obey with previous warnings may be sent to Borstal institutions. Juvenile Offenders shall be sent to reformative schools while adolescents should be kept in Borstal schools.
Offenders under the age of 15 years are sent to reformative schools while those under twenty one shall be sent to Borstal institutions. While Borstal institutions mainly provide vocational training, the reformative schools provide an elaborated educational arrangement.
In the case of Sampurna Behrua Vs. Union of India[4] the Court while considering a public interest litigation gave a list of directions to the authorities specified in the Act. The State Child Protection Society and District Child Protection unit are obliged to ensure that the institutions established under the Act are maintained. They should coordinate with Government officials as well as with NGOs to discharge their functions.
There must be Juvenile Justice Boards in every district, at least where offences committed by juveniles are reported. Therefore, the members of the Board must be adequately recruited, and they must be properly trained. It must be made sure that, the children in conflict with law are properly represented.
The Probation Officer shall conduct social investigations, attend the proceedings of the Board and Children’s Court, clarify the problems of the child, participate in the monitoring, education, vocational and rehabilitation programmes etc.
In the case of Arnit Das Vs. State of Bihar[5], it was held that if two views are possible regarding the age of the accused, the one which favours the juvenility must be adopted.
In the case of Rajindra Chandra Vs. State of Chhattisgarh and Another[6], it was observed that standard of proof for age determination is the degree of probability and not proof beyond reasonable doubt.
In the case of Parag Bhati Vs. State of Uttar Pradesh and Anr.[7]., the Court observed that;
“It is no doubt true that if there is a clear and unambiguous case in favour of the juvenile accused that he was a minor below the age of 18 years on the date of the incident and the documentary evidence at least prima facie proves the same, he would be entitled to the special protection under the JJ Act. But when an accused commits a grave and heinous offence and thereafter attempts to take statutory shelter under the guise of being a minor, a casual or cavalier approach while recording as to whether an accused is a juvenile or not cannot be permitted as the courts are enjoined upon to perform their duties with the object of protecting the confidence of common man in the institution entrusted with the administration of justice.”
Conclusion
It is no doubt that, the First Time Offenders and Juvenile Offenders shall be treated differently. It is necessary that, they shall not mix with the criminal and corrupted elements of the society. But at the same time, people are taking advantage of such benevolent legislations.
Also, the anguish of people in such incidents was evident in the Nirbhaya Gang Rape Case. It is a disputing as well as disturbing fact that whether children who are no longer innocent can presumed to be innocent.
Thus, such legislations shall be subjected to parliamentary scrutiny regularly and necessary amendments shall be brought regularly.
- Ishar Das Vs. State Of Punjab 1972 AIR 1295, 1972 SCR (3) 312 ↑
- Arvind Mohan Sinha Vs. Amulya Kumar Biswas 1974 AIR 1818, 1974 SCR (3) 133 ↑
- Jugal Kishore Prasad Vs. State Of Bihar 1972 AIR 2522, 1973 SCR (1) 875 ↑
- SampurnaBehrua Vs. Union OfIndia (2018) 4 SCC 433 ↑
- Arnit Das Vs. State of Bihar (2000) 5 SCC 488 ↑
- Rajindra Chandra Vs. State of Chhatisgarh and Another (2002) 2 SCC 287 ↑
- Parag Bhati Vs. State of Uttar Pradesh and Anr (2016) 12 SCC 744 ↑