Section 2 of Juvenile Justice (Care And Protection Of Children) Act, 2000

In this Act, unless the context otherwise requires—

(a) “Advisory board” means a Central or a State Advisory Board or district and city level advisory board, as the case may be, constituted under Section 62;

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[(aa) “Adoption” means the process through which the adopted child is permanently separated from his biological parents and become the legitimate child of his adoptive parents with all the rights, privileges and responsibilities that are attached to the relationship;]

(b) “Begging” means:

(i) Soliciting or receiving alms in a public place or entering into any private premises for the purpose of soliciting or receiving alms, whether under any pretence;

(ii) Exposing or exhibiting with the object of obtaining or extorting alms, any sore, wound, injury, deformity or disease, whether of himself or of any other person or of an animal;

(c) “Board’ means a Juvenile Justice Board constituted under Section 4;

(d) “Child in need of care and protection” means a child:

(i) Who is found without any home or settled place or abode and without any ostensible means of subsistence?

[(i) Who is found begging, or who is either a street child or a working child;]

(ii) Who resides with a person (whether a guardian of the child or not) and such person—

(a) Has threatened to kill or injure the child and there is a reasonable

likelihood of the threat being carried out; or (b) has killed abused or neglected some other child or children and there is reasonable likelihood of the child in question being killed, abused or neglected by that person;

(iii) who is mentally or physically challenged or ill children or children suffering from terminal diseases or incurable diseases having no one to support or look-after;

(iv) Who has a parent or guardian and such parent or guardian is unfit or incapacitated to exercise control over the child;

(v) Who does not have parent and no one is willing to take care of or whose parents have abandoned [or surrendered] him or who is missing and run away child and whose parents cannot be found after reasonable inquiry;

(vi) Who is being or is likely to be grossly abused, tortured or exploited for the purpose of sexual abuse or illegal acts;

(vii) Who is found vulnerable and is likely to be inducted into drug abuse or trafficking;

(viii) Who is being or is likely to be abused for unconscionable gains;

(ix) Who is victim of any armed conflict, civil commotion or natural calamity?

(e) “Children’s home” means an institution established by a State Government or by voluntary organisation and certified by that Government under Section 34;

(f) “Committee” means a Child Welfare Committee constituted under Section 29;

(g) “Competent authority” means in relation to children in need of care and protection of a Committee and in relation to juveniles in conflict with law a Board;

(h) “fit institution” means a governmental or registered non-governmental organisation or a voluntary organisation prepared to own the responsibility of a child and such organisation is found fit by the [State Government on the recommendation of the competent authority];

(i) Fit person” means a person, being a social worker or any other person, who is prepared to own the responsibility of a child and is found fit by the competent authority to receive and take care of the child;

(j) “Guardian”, in relation to a child, means his natural guardian or any other person having the actual charge or control over the child and recognised by the competent authority as a guardian in course of proceedings before that authority;

(k) “Juvenile” or “child” means a person, who has not completed eighteenth year of age;

[(l) “Juvenile in conflict with law” means a juvenile who is alleged to have committed an offence and has not completed eighteenth year of age as on the date of commission of such offence;]

(m) 10[***];

(n) “Narcotic drug and psychotropic substance” shall have the meanings ‘respectively’ assigned to them in the Narcotic Drugs and Psychotropic Substance Act, 1985 (61 of 1985);

(o) “Observation home” means a home established by a State Government or by a voluntary organisation and certified by that State Government under Section 8, as an observation home for the juvenile in conflict with law;

(p) “Offence” means an offence punishable under any law for the time being in force;

(q) “place of safety” means any place or institution (not being a police lock­up or jail), the person in-charge of which is willing temporarily to receive and take care of the juvenile and which, in the opinion of the competent authority, may be a place of safety for the juvenile;

(r) “Prescribed” means prescribed by rules made under this Act;

(s) “Probation officer” means an officer appointed by the State Government as a probation officer under the Probation of Offenders Act, 1958 (20 of 1958);

(t) “Public place” shall have the meaning assigned to it in the Immoral Traffic (Prevention) Act, 1956 (104 of 1956);

(u) “Shelter home” means a home or a drop-in-centre set up under Section 37:

(v) “Special home” means an institution established by a State Government or by a voluntary organisation and certified by that Government under Section 9;

(w) “Special juvenile police unit” means a unit of the police force of a State designated for handling of juveniles or children under Section 63;

(x) “State Government”, in relation to a Union territory means the Administrator of that Union territory appointed by the President under Article 239 of the Constitution;

(y) All words and the expressions used but not defined in this Act and defined in the Code of Criminal Procedure, 1973 (2 of 1974), shall have the meanings respectively, assigned to them in that Code.

Comment:

This section embodies interpretation of certain words and their definition which have been used in the Act. This Act being a beneficial legislation for the protection and care of children and juveniles, priority has to be given to the legislative intent while interpreting the provisions of this Act. The intention of the legislature can be known from the phraseology and words used in the statute.

Where any provision of a statute carries two meanings the one which is in accordance with the intention of the legislature should be preferred while interpreting that provision.

These general principles of interpretation are applicable in construing the meaning of different provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000.

(1) ‘Juvenile’ or ‘Child”:

For the purpose of this Act, juvenile or child means a person who has not completed eighteenth year of age whether he is a boy or a girl. It may be stated that in the repealed Juvenile Justice Act, 1986 the word ‘Juvenile’ was defined as a boy under the age of sixteen years or a girl under the age of eighteen years. This difference has, however, been scrapped under the new Act of 2000 and the age for both boys and girls is set out as eighteen years to be treated as a juvenile or a child for the purpose of this Act.

‘Juvenile in Conflict with law’:

One of the special features of this Act is that a juvenile who has committed an offence is not addressed as ‘Juvenile delinquent’ but instead he is called a juvenile in conflict with law. The object perhaps is to avoid stigma which the word ‘delinquent’ carried with it, in case of juvenile offenders.

In the trial of a juvenile in conflict with law, the Juvenile Justice Board has to consider the following two issues in respect of the age of the juvenile:—

(1) Whether the person before the Board is within the age prescribed in case of a juvenile or child; and

(2) Whether the basis of determination of age of the juvenile should be date on which he committed the offence or it should be the date on which he is brought before the Board for inquiry and proceedings.

The Supreme Court in Deoki Nandan Dayma v. State of Uttar Pradesh, held that entry in the school register as to the date of birth of student is admissible in evidence to show whether the accused is juvenile or not. It’s acceptance shall, however, depend on the probative value of such entry in the school register, that is, whether it was proper or not. The Court further clarified that in case of difference of date of birth between school certificate and medical certificate, the date mentioned in school certificate should be taken as authentic because the certificate of Medical Officer may be based on mere guess. Allowing the appeal, the Court directed the High Court of Allahabad to re-hear and dispose of the revision at the earliest as it was already long pending before it.

The Madhya Pradesh High Court in its decision in Sunil and another v. State, clarified that the Court cannot leave the determination of age of juvenile entirely on the evidence, but it is required to make an enquiry.

Suo Motu:

In this case, the ADJ, Chhatarpur had rejected the bail application of the accused on the basis of ossification test and medical report which showed that the appellant was not a juvenile. The High Court ruled that “ossification test is not a conclusive proof in the matter and it is the primary duty of the Court to find out whether applicants are covered by the Act or not and the juvenile may not be able to lead any evidence as to his exact age. The Court must do participatory justice and exercise suo motu powers rather than be a silent spectator.” The case was, therefore, remanded to the learned ADJ, Chhatarpur for re-trial.

In Izaz Ahmad v. State of Madhya Pradesh, reiterating its earlier decision as to the manner and procedure for determination of age of the juvenile accused, Court held that the Sessions Judge is bound to hold an enquiry and record a finding whether the accused is juvenile or not. In the instant case, the petitioner accused was never produced before the Juvenile Court or any other authority under the Juvenile Justice Act.

Thus there was no occasion for any such authority to hold enquiry under Section 32 of the Act. Therefore, the Court below was directed to itself hold enquiry and record a finding and it is only after doing so, it should proceed with the trial of the case.

In the case of Mohd. Dahaur Mia v. State of Bihar, the petitioner alleged that he was a juvenile below the age of 16 years under the J.J. Act, 1986. The C J M, however, held no enquiry for determination of the age of the accused under Section 32 of the Act nor did he record any opinion about the age of the petitioner.

The Patna High Court held that in case of a juvenile accused his bail application has to be considered only under Section 18 of the Act and bail application under Section 439 of the Code of Criminal Procedure, 1973, would not be maintainable and if a person is aggrieved by an order passed under Section 18 of the J.J. Act, he had a remedy of appeal before the Court of Session under Section 37 of the Act. The High Court has only revisional power under Section 38 of the Act.

In Ajay Pratap Singh v. State of M.P., the High Court set aside the charges against the juvenile accused because no inquiry as to the determination of exact age of the accused was made by the trial Court. In this case, Session Judge had decided vide his order dated July 10, 2000 that according to the medical report of the accused he was above the age of 16 and therefore could not be allowed the benefit of trial under the Juvenile Justice Act, 1986.

On appeal, the High Court ruled that where the accused has claimed himself to be a juvenile, it is the primary duty of the trial Court to enquire and ascertain about the exact age of the accused and decide whether he is entitled to the benefits of being tried under the Juvenile Justice Act.

In the case of Dhruvendra Singh v. State of Rajasthan, the High Court held that for the purpose of application of the Juvenile Justice Act, the Court should not depend on the medical report of the accused or his physical built of the body for determination of the age of the accused but should take into consideration the date of birth as recorded in the school register or any other available evidence as to his age.

The Supreme Court in Prabhunath Prasad v. State of Bihar, reiterated that in case of trial of a juvenile accused, the trial court suo motu may hold an inquiry as to the exact age of the accused so as to eliminate any kind of dispute or doubt as to the eligibility of the accused for being tried under the Juvenile Justice Act.

In Km. Anita v. Atal Behari, the High Court of Madhya Pradesh ruled that the date of birth of the juvenile accused as recorded in the Register of Deaths and Birth, are more authentic than the one entered in the medical report and therefore, the former should be given priority while considering the age of the accused for his or her trial under J.J. Act.

The Supreme Court in Ramdeo alias Rajnath Chauhan v. State of Assam observed that for the determination of age of the juvenile for the purpose of his trial under Juvenile Justice Act, his date of birth as recorded in the school register may be accepted provided it is entered by a competent authority.

In the instant case, the accused was a juvenile according to the date of birth as recorded in the school register but there was no evidence to prove that it was recorded by a public servant or a competent authority in discharge of his official duty and therefore, could not be accepted as an authentic evidence for the determination of the age of the accused.

Relevant date as to the determination of age of Juvenile: Whether it should be the date on which the offence was committed or the date on which the Juvenile was produced before the Court for trial?

In the case of Krishna Bhagwan v. State of Bihar, the full Bench of the Patna High Court observed that for determination of age of the juvenile for the purpose of his trial under the Juvenile Justice Act, the relevant date should be the date on which the offence was committed.

Therefore, where the juvenile accused is within the age limit prescribed by the Act, he should be tried in a Juvenile Court despite the fact that he exceeded that age-limit at the time when he was produced before the Court for trial.

Retreating the same view, the Supreme Court in Bhola Bhagat v. State of Bihar, held that for being entitled to be tried under the Juvenile Justice Act, the age of the accused on the date of occurrence of the offence should be taken into consideration and it is immaterial if he exceeds the prescribed age on the date of his being produced before the Court for trial.

But the Supreme Court in its decision in Arnit Das v. State of Bihar, over-ruling its earlier decision, held that the crucial date to decide the issue whether a person is juvenile or not, is the date when he/she is brought before the competent authority and not be date of commission of offence. The competent authority shall proceed to hold inquiry as to the age of that person for determining the same by reference to the date of appearance of the person before it.

In Pratap Singh v. State of Jharkhand and another, a three-judge Bench of the Supreme Court, while considering the question regarding the date of reference to which age of a boy or a girl has to be determined so as to find out whether he or she is a Juvenile or not, observed that there exists conflict between the decisions of the Court in Arnit Das v. State of Bihar and Umesh Chandra v. State of Rajasthan. The Bench, therefore, observed that since the question involved is one of the frequent recurrences and the view of law taken in this case is likely to have a bearing on the New J.J. Act of 2000, the matter deserves to be heard by a Constitution Bench of the Court.

In Rajender Chandra v. Chandigarh Administration, the accused was charged under Section 302/34, IPC on February 27, 1997 and was taken into custody the same day. He claimed himself to be a juvenile and demanded the benefit of being tried under the Juvenile Justice Act.

The Court of Magistrate First Class rejected the plea of the accused after holding an inquiry about his age and the Sessions Court also maintained the trial Court’s decision. The accused filed a revision petition against this order and the High Court accepted the petitioner’s plea that he was a juvenile, was entitled to be tried under the Juvenile Justice Act. The complainant and the father of victim both appealed against the order of the High Court to the Supreme Court.

The Supreme Court came to the conclusion that on the basis of BHP, Birth and Death Register and High School Certificate the date of birth of the accused was 30th September, 1981 and this was supported by evidence of the parent and teachers of the accused.

The Court held that the burden of proving that the accused was within the age prescribed for being treated as juvenile is on the accused himself. But the plea of the accused that he was a juvenile and hence be tried under the Juvenile Justice Act having been rejected by the trial Court and the Court of Session, there were two distinct opinions about this issue. Therefore, the Court ruled that where there are two conflicting views about a particular issue, the one which is beneficial to the accused should be accepted.

Accordingly, the accused was to be treated as juvenile and be tried under the Juvenile Justice Act.

In Robert Heijcamp & another v. Bal Anand World Children Welfare Trust, Mumbai,ⁱ⁰ the Bombay High Court held that the children of a parent or guardian who are suffering from mental disease or illness are covered under Section 2 (iv) of the Act because such parents or guardian, as the case may be, are incapacitated to look after their children properly and therefore the children are deprived of care and protection of their parents/guardian.