Age, Appeals and Revision

Sub-section (2). Where the child's attendance is required, he is entitled to travel reimbursement for himself and one escort accompanying him, as per actual expenditure, from the Board, the Committee or the District Child Protection Unit.

Section 92. Where a child brought before the Committee or Board is found to be suffering from a disease requiring prolonged medical treatment, or a physical or mental complaint that will respond to treatment, it may send the child to a place recognised as a fit facility for such period as it thinks necessary for the treatment.

Section 93(1). Where a child kept in a special home, observation home, Children's Home or institution is a mentally ill person, or is addicted to alcohol or other drugs leading to behavioural changes, the Committee or Board may order his removal to a psychiatric hospital or psychiatric nursing home in accordance with the Mental Health Act, 1987.

Sub-section (2). On the certificate of discharge of that hospital or nursing home, the Committee or Board may order his removal to an Integrated Rehabilitation Centre for Addicts or a similar centre maintained by the State Government, only for the period required for inpatient treatment.

Section 94: presumption and determination of age

Sub-section (1), the obvious case. Where it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any provision of the Act, other than for the purpose of giving evidence, that the person is a child, the Committee or Board shall record such observation stating the age of the child as nearly as may be, and proceed with the inquiry under section 14 or section 36, without waiting for further confirmation of the age.

Sub-section (2), the doubtful case. Where the Committee or Board has reasonable grounds for doubt whether the person is a child, it shall undertake the process of age determination by seeking evidence by obtaining:

(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof, (ii) the birth certificate given by a corporation, a municipal authority or a panchayat; and (iii) only in the absence of (i) and (ii), the age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board.

Proviso: such a test shall be completed within fifteen days from the date of the order.

Sub-section (3). The age recorded by the Committee or the Board shall, for the purposes of this Act, be deemed to be the true age of that person.

Two traps. The ladder is hierarchical, not a menu: the medical test is available only in the absence of both documents. And sub-section (1) excludes a person brought for the purpose of giving evidence, so the appearance shortcut is for the child in the proceeding, not for a witness.

Sections 95 to 98: transfer, release and leave

Section 95(1), transfer to the home district. If during the inquiry it is found that a child hails from a place outside the jurisdiction, the Board or Committee shall, if satisfied after due inquiry that it is in the best interest of the child, and after due consultation with the Committee or Board of the child's home district, order the transfer of the child as soon as possible, with the relevant documents.

First proviso: for a child in conflict with law, such a transfer can be made only after the inquiry has been completed and the final order passed by the Board. Second proviso: on an inter-State transfer, the child is handed over, if convenient, to the Committee or Board of his home district, or to that in the capital city of the home State.

Sub-section (2), the escort. Once the transfer is decided, an escort order is given to the Special Juvenile Police Unit within fifteen days. Proviso: a girl child shall be accompanied by a woman police officer. Further proviso: where no Special Juvenile Police Unit is available, the institution or the District Child Protection Unit provides an escort.

Sub-section (3). The State Government shall make rules for travelling allowance to the escorting staff, paid in advance.

Sub-section (4). The receiving Committee or Board processes restoration, rehabilitation or social re-integration.

Section 96, transfer between institutions. The State Government may, on the recommendation of a Committee or Board, and keeping the best interest of the child in mind, order the child's transfer from any Children's Home, special home, fit facility or fit person to another within the State, with prior intimation. Proviso: for a transfer within the same district between similar homes, the Committee or Board of that district is competent. A transfer to an institution outside the State is only in consultation with the concerned State Government, sub-section (2). The total period of stay shall not be increased by such transfer, sub-section (3); and the order is operative for the Committee or Board of the area to which the child is sent, sub-section (4).

Section 97, release.

Sub-section (1). Where a child is kept in a Children's Home or special home, on the report of a probation officer, social worker, or of the Government or a voluntary or non-governmental organisation, the Committee or Board may consider his release, absolutely or on conditions, permitting him to live with parents or a guardian, or under the supervision of any authorised person named in the order willing to receive and take charge of him and educate and train him for some useful trade or calling, or to look after him for rehabilitation. Proviso: on failure to fulfil the conditions, by the child or by the supervisor, the Board or Committee may cause him to be taken charge of and placed back in the home.

Sub-section (2). Time spent out of the home on a temporary release counts as part of the period for which he is liable to be kept. Proviso: where a child in conflict with law fails to fulfil the conditions, the time still to be served is extended by the period lost through that failure.

Section 98, leave of absence.

Sub-section (1). The Committee or Board may permit leave of absence on special occasions like an examination, the marriage of relatives, the death of kith or kin, or an accident or serious illness of a parent, or any emergency of like nature, under supervision, generally not exceeding seven days at one instance, excluding journey time.

Sub-section (2). That time counts as part of the period he is liable to be kept.

Sub-section (3). If the child refuses or fails to return when the leave expires or is revoked, he may be taken charge of and taken back. Proviso: for a child in conflict with law, the time still to be served is extended by the period lost.

Note the asymmetry in sections 97(2) and 98(3), and it is examinable. Time spent lawfully outside counts towards the period. Time lost by failing to return is added to it, and only for a child in conflict with law.

Sections 99 and 100: confidentiality and good faith

Section 99(1). All reports related to the child and considered by the Committee or the Board shall be treated as confidential. Proviso: the Committee or Board may communicate the substance to another Committee or Board, or to the child, or to his parent or guardian, and give them an opportunity of producing evidence relevant to the matter stated in the report.

Sub-section (2). Notwithstanding anything in this Act, the victim shall not be denied access to their case record, orders and relevant papers.

Section 100. No suit, prosecution or other legal proceeding shall lie against the Central Government, the State Government, or any person acting under their directions, in respect of anything done in good faith or intended to be done in pursuance of this Act or of any rules or regulations made thereunder.

Section 101: appeals

Sub-section (1), the general appeal. Any person aggrieved by an order made by the Committee or the Board may, within thirty days from the date of the order, appeal to the Children's Court, except for decisions of the Committee relating to Foster Care and Sponsorship After Care, for which the appeal lies to the District Magistrate.

Proviso: the Court of Session or District Magistrate may entertain an appeal after thirty days if satisfied that the appellant was prevented by sufficient cause, and such appeal shall be decided within thirty days.

Sub-section (2), the preliminary assessment. An appeal shall lie against an order of the Board passed after making the preliminary assessment into a heinous offence under section 15, before the Court of Sessions; and that Court may, while deciding the appeal, take the assistance of experienced psychologists and medical specialists other than those whose assistance was obtained by the Board.

Sub-section (3), as substituted in 2021. No appeal shall lie from any order of acquittal made by the Board in respect of a child alleged to have committed an offence other than a heinous offence by a child who has completed or is above the age of sixteen years.

Sub-section (4). No second appeal shall lie from any order of the Court of Session passed in appeal under this section.

Sub-section (5). Any person aggrieved by an order of the Children's Court may appeal to the High Court in accordance with the Code of Criminal Procedure, 1973.

Sub-sections (6) and (7), inserted in 2021. Any person aggrieved by an adoption order passed by the District Magistrate may, within thirty days, appeal to the Divisional Commissioner; every such appeal shall be decided as expeditiously as possible, with an endeavour to dispose of it within four weeks. Proviso: where there is no Divisional Commissioner, the State Government or Union territory Administration may by notification empower an officer of equivalent rank.

Sections 102 to 104: revision, procedure, amendment

Section 102, revision. The High Court may at any time, either on its own motion or on an application, call for the record of any proceeding in which any Committee, Board, Children's Court or Court has passed an order, for the purpose of satisfying itself as to the legality or propriety of that order, and may pass such order as it thinks fit. Proviso: it shall not pass an order prejudicial to any person without giving him a reasonable opportunity of being heard.

Section 103, procedure. Save as expressly provided, a Committee or Board holding an inquiry shall follow the prescribed procedure and, subject to that, shall follow as far as may be the procedure in the Code of Criminal Procedure, 1973 for the trial of summons cases, sub-section (1); and appeals and revisions follow, as far as practicable, the Code of Criminal Procedure, 1973, sub-section (2).

Section 104, amending its own orders.

Sub-section (1). Without prejudice to appeal and revision, the Committee or Board may, on an application, amend any order passed by itself as to the institution to which a child is to be sent, or as to the person under whose care or supervision a child is to be placed. Proviso: during that hearing there shall be at least two members of the Board, of whom one shall be the Principal Magistrate, and at least three members of the Committee, and all persons concerned or their authorised representatives shall be heard before the orders are amended.

Sub-section (2). Clerical mistakes, or errors from any accidental slip or omission, may be corrected at any time, on its own motion or on an application.

A worked example

A boy who looks about thirteen is produced before the Board.

Must his age be proved first? No. Where it is obvious from his appearance that he is a child, the Board records the observation stating his age as nearly as may be and proceeds with the inquiry without waiting for confirmation, section 94(1).

Change the facts: he could be seventeen or nineteen. Now there are reasonable grounds for doubt, and the Board takes the ladder in section 94(2): first the school date of birth certificate or matriculation certificate; in its absence the birth certificate from a corporation, municipal authority or panchayat; and only if neither exists, an ossification test or other latest medical test, completed within fifteen days.

The test says between seventeen and nineteen and the Board records seventeen. That age is deemed to be his true age for the purposes of the Act, sub-section (3).

He belongs to another district. The Board may transfer him, but only after the inquiry is completed and the final order passed, first proviso to section 95(1), and after consulting the Board of his home district; an escort order goes to the Special Juvenile Police Unit within fifteen days.

A girl is being transferred. She shall be accompanied by a woman police officer, proviso to section 95(2).

He is in a special home and his mother falls seriously ill. He may be granted leave of absence under supervision, generally not exceeding seven days, excluding journey time, section 98(1); that time counts towards his period of stay.

He does not come back. He may be taken charge of and taken back, and, being a child in conflict with law, the time still to be served is extended by the period lost, section 98(3).

His father is unhappy with the Board's order. He may appeal to the Children's Court within thirty days, section 101(1); late, if prevented by sufficient cause, and then the appeal is decided within thirty days.

The order was a preliminary assessment under section 15. The appeal lies to the Court of Sessions, which may take the assistance of psychologists and medical specialists other than those the Board used, section 101(2). From that Court's order there is no second appeal, sub-section (4).

The order was of the Children's Court. The appeal is to the High Court under the Code, sub-section (5).

The order was an adoption order of the District Magistrate. The appeal is to the Divisional Commissioner within thirty days, to be decided within an endeavoured four weeks, sub-sections (6) and (7).

Nobody appeals, but the order looks unlawful. The High Court may call for the record on its own motion and pass such order as it thinks fit, after hearing anybody it would prejudice, section 102.

The Board later wants to change the institution it named. It may amend its own order on an application, with two members including the Principal Magistrate present and all concerned heard, section 104(1); a clerical slip may be corrected at any time, sub-section (2).

Distinctions

What this does NOT mean

A medical test is not the ordinary way of proving age. It is available only in the absence of the school certificate and the birth certificate.

The appearance shortcut is not for witnesses. Section 94(1) excludes a person brought for the purpose of giving evidence.

Confidentiality does not exclude the victim. Section 99(2) says the victim shall not be denied access to their case record, orders and relevant papers.

Section 101 is not one appeal. Five different orders go to five different forums, and there is no second appeal from the Court of Session.

And section 104 is not a review on the merits. It permits amendment as to the institution or the person in whose care the child is placed, and the correction of clerical mistakes.

Quick revision

• 90 to 93: the parent or guardian may be required to attend; the child's attendance may be dispensed with, and where required he gets travel reimbursement for himself and one escort; a child needing prolonged treatment goes to a fit facility; a mentally ill or addicted child goes to a psychiatric hospital under the Mental Health Act, 1987, and thereafter to an Integrated Rehabilitation Centre for Addicts for the inpatient period.
• 94: obvious from appearance, record and proceed; on reasonable doubt, the ladder of school or matriculation certificate, then corporation, municipal or panchayat birth certificate, then ossification or other latest medical test within fifteen days; the recorded age is deemed true.
• 95 to 98: transfer to the home district in the child's best interest, after the final order for a child in conflict with law, with an escort order in fifteen days and a woman police officer for a girl; transfer between institutions by the State Government, within the district by the Committee or Board, outside the State in consultation, without increasing the total stay; release absolutely or on conditions, with re-taking on breach; leave of absence generally up to seven days, counting towards the stay, with extension for failure to return.
• 99 and 100: reports are confidential, the substance communicable with an opportunity to produce evidence; the victim is never denied access; good faith protection for the Governments and those acting under their directions.
• 101: thirty days to the Children's Court; foster care and sponsorship after care to the District Magistrate; s.15 assessments to the Court of Sessions, which may use other experts; no appeal from an acquittal except in the s.15 class; no second appeal; Children's Court to the High Court; adoption orders to the Divisional Commissioner in thirty days, decided in about four weeks.
• 102 to 104: High Court revision on its own motion or on application, as to legality or propriety, never prejudicial without a hearing; inquiries follow the summons case procedure and appeals the Code; the Committee or Board may amend its own order as to the institution or person, with two Board members including the Principal Magistrate or three Committee members and all concerned heard, and may correct clerical mistakes at any time.

Test yourself

1. How is a child's age determined? Where it is obvious from his appearance, the Committee or Board records the observation and proceeds. Where there are reasonable grounds for doubt, it obtains the date of birth certificate from the school or the matriculation or equivalent certificate; in the absence of that, the birth certificate from a corporation, municipal authority or panchayat; and only in the absence of both, an ossification test or other latest medical age determination test, completed within fifteen days, section 94.

2. What is the status of the age so recorded? For the purposes of the Act it is deemed to be the true age of that person, section 94(3).

3. Within what time does an appeal lie against an order of the Board? Within thirty days from the date of the order, to the Children's Court; the Court may entertain a late appeal if satisfied of sufficient cause, and shall decide it within thirty days, section 101(1).

4. Where does an appeal against a preliminary assessment lie? To the Court of Sessions, which may take the assistance of experienced psychologists and medical specialists other than those whose assistance was obtained by the Board, section 101(2).

5. Is there a second appeal? No. Section 101(4) bars a second appeal from any order of the Court of Session passed in appeal under that section.

6. Where does an appeal against an adoption order lie? To the Divisional Commissioner, within thirty days from the date of the order of the District Magistrate, with an endeavour to dispose of it within four weeks; and where there is no Divisional Commissioner, to an officer of equivalent rank empowered by notification, section 101(6) and (7).

7. Can the Board change its own order? Yes, as to the institution to which the child is sent or the person under whose care or supervision he is placed, on an application and after hearing all concerned, with at least two members of the Board including the Principal Magistrate present; and clerical mistakes may be corrected at any time, section 104.