Apprehension, Bail and the First Steps

Proviso. In no case shall a child alleged to be in conflict with law be placed in a police lockup or lodged in a jail.

Sub-section (2). The State Government shall make rules consistent with the Act:

(i) to provide for the persons through whom, including registered voluntary or non-governmental organisations, a child alleged to be in conflict with law may be produced before the Board; (ii) to provide for the manner in which such a child may be sent to an observation home or place of safety.

Section 11: the person in whose charge the child is placed

Any person in whose charge a child in conflict with law is placed shall, while the order is in force, have responsibility of the child as if that person were the child's parent, and responsible for the child's maintenance.

Proviso. The child shall continue in that person's charge for the period stated by the Board, notwithstanding that the child is claimed by the parents or any other person, except where the Board is of the opinion that the parent or other person is fit to exercise charge over the child.

The proviso is the operative half. A placement made by the Board is not undone by a parent simply turning up and asking for the child; the Board decides whether the parent is fit.

Section 12: bail

Sub-section (1), the rule. When any person who is apparently a child and is alleged to have committed a bailable or non-bailable offence is apprehended or detained by the police, or appears or is brought before a Board, such person shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 or in any other law for the time being in force:

• be released on bail with or without surety; or
• be placed under the supervision of a probation officer; or
• be placed under the care of any fit person.

Proviso, the three exceptions. He shall not be so released if there appear reasonable grounds for believing that:

• the release is likely to bring that person into association with any known criminal; or
• the release would expose the said person to moral, physical or psychological danger; or
• the person's release would defeat the ends of justice;

and the Board shall record the reasons for denying the bail and the circumstances that led to such a decision.

Sub-section (2), refusal by the police. Where the person having been apprehended is not released on bail by the officer in charge of the police station, that officer shall cause him to be kept only in an observation home or a place of safety, in the prescribed manner, until he can be brought before a Board.

Sub-section (3), refusal by the Board. Where he is not released on bail by the Board, it shall make an order sending him to an observation home or a place of safety for such period during the pendency of the inquiry as may be specified in the order.

Sub-section (4), impossible conditions. Where a child in conflict with law is unable to fulfil the conditions of the bail order within seven days, he shall be produced before the Board for modification of the conditions of bail.

Three points that are constantly got wrong. First, section 12 applies to a person apparently a child, so it operates before age is finally determined. Second, it covers bailable and non-bailable offences alike; the classification that governs an adult is irrelevant. Third, the three grounds in the proviso are the only grounds, and the Board must record reasons and circumstances for using them.

Section 13: information to parents and to the probation officer

Sub-section (1). Where a child alleged to be in conflict with law is apprehended, the Child Welfare Police Officer of the police station, or the special juvenile police unit to which the child is brought, shall, as soon as possible after apprehending the child, inform:

(i) the parent or guardian of the child, if they can be found, and direct them to be present at the Board before which the child is produced; and (ii) the probation officer, or if no probation officer is available, a Child Welfare Officer, for the preparation and submission within two weeks to the Board of a social investigation report containing information regarding the antecedents and family background of the child and other material circumstances likely to be of assistance to the Board in making the inquiry.

Sub-section (2). Where a child is released on bail, the probation officer or the Child Welfare Officer shall be informed by the Board.

Note the two different periods for the social investigation report. Section 13(1)(ii) requires it within two weeks of the police informing the officer; section 8(3)(e) requires the Board to direct one within fifteen days from the date of first production. They are two different triggers, not a contradiction.

The probation officer, gathered

MU has asked for the duties of the probation officer as a full essay in four of the papers we hold. The Act nowhere lists them in one section, so they have to be gathered, and they are gathered here because section 13 is where he first enters the procedure.

Two warnings before the list. The papers that ask this question ask it with reference to the Probation of Offenders Act, 1958, and that Act is not on this syllabus: it belongs to the other Sem V scheme, the 60:40 paper on the Code, the Juvenile Justice Act 2000 and the Probation of Offenders Act. What follows is what this Act gives him.

And note who he is. By section 2(48) a "probation officer" is an officer appointed by the State Government under the Probation of Offenders Act, 1958, or the Legal-cum-Probation Officer appointed by the State Government under a District Child Protection Unit.

Before the inquiry.

• On the child's apprehension the Child Welfare Police Officer or special juvenile police unit informs him, and he must prepare and submit a social investigation report to the Board within two weeks, covering the child's antecedents, family background and other material circumstances likely to assist the Board, section 13(1)(ii).
• The Board may direct him to undertake that social investigation and submit the report within fifteen days of the child's first production, to ascertain the circumstances in which the alleged offence was committed; and only if he is not available does the task pass to a Child Welfare Officer or a social worker, section 8(3)(e).
• Where the child is released on bail, the Board informs him, section 13(2).

As an alternative to custody.

• The Board may release a child under his supervision instead of on bail with or without surety, or in the care of a fit person, section 12(1). That is the probation officer as a substitute for a surety, and it is what makes bail real for a child whose family can furnish nothing.

For the child in need of care and protection.

• The Committee may direct him to conduct a social investigation and submit a report, section 30(iii).

After the order.

• The final order of the Children's Court must include an individual care plan for the child's rehabilitation including follow up by him, section 19(2).
• Where a child is in a place of safety, he makes the periodic follow up report every year, to evaluate the child's progress and to ensure that there is no ill-treatment to the child in any form, section 19(4), and those reports go to the Children's Court, sub-section (5).
• When the child attains twenty-one with his term unfinished, the Children's Court provides for follow up by him to evaluate whether the child has undergone reformative changes and can be a contributing member of society, section 20(1).
• A child kept in a Children's Home or special home may be released, absolutely or on conditions, on his report, section 97(1).

Read as a whole his work has three phases, and an answer that names them is a better answer than a list. Before the inquiry he is the Board's eyes on the child's background, and the social investigation report is his. During it he is an alternative to custody. After it he is the follow up: yearly in a place of safety, again at twenty-one, and the person on whose report a child may be let out of an institution.

A worked example

A boy of sixteen is picked up by a police constable on a complaint of snatching.

Where does he go? Under the charge of the special juvenile police unit or the designated Child Welfare Police Officer, section 10(1). In no case to a police lockup or a jail, proviso.

By when must he be produced? Before the Board without any loss of time but within twenty-four hours, excluding the time necessary for the journey.

Who must be told? The parent or guardian, if they can be found, who must be directed to be present at the Board; and the probation officer, or a Child Welfare Officer if none is available, who must prepare a social investigation report within two weeks, section 13(1).

The offence is non-bailable. Does that matter? No. Section 12(1) covers a bailable or non-bailable offence alike, and operates notwithstanding the Code of Criminal Procedure.

He has no money and no surety. Bail may be with or without surety; and the Board may instead place him under the supervision of a probation officer or under the care of any fit person.

The prosecution says the offence is grave. Gravity is not one of the three grounds. The Board may refuse only if release is likely to bring him into association with any known criminal, would expose him to moral, physical or psychological danger, or would defeat the ends of justice; and it must record its reasons and the circumstances.

The station officer refuses bail before production. Then the child is to be kept only in an observation home or a place of safety, section 12(2), never in the station.

The Board too refuses. It must make an order sending him to an observation home or place of safety, for a period specified, during the pendency of the inquiry, section 12(3).

Bail is granted but his family cannot arrange the surety. If he cannot fulfil the conditions within seven days, he shall be produced before the Board for modification of the conditions, section 12(4).

He is released into the care of a fit person, and a fortnight later his father comes to claim him. He continues in that person's charge for the period stated by the Board, unless the Board is of opinion that the father is fit to exercise charge, proviso to section 11. Meanwhile the fit person has the responsibility as if he were the child's parent, including for maintenance.

Distinctions

What this does NOT mean

Section 12 is not confined to children whose age is established. It applies to a person apparently a child.

It is not confined to petty offences. The section names bailable or non-bailable offences without qualification.

Refusal of bail is not the end of the matter. The Board must record reasons and circumstances, and the child goes to an observation home or place of safety, not to custody as an adult would.

Bail is not defeated by poverty. It may be without surety, or replaced by supervision or the care of a fit person; and impossible conditions must be modified within seven days.

And a placement is not undone by a parent's demand. The child continues in the charge ordered unless the Board finds the parent fit.

Quick revision

• 10: the child goes to the special juvenile police unit or Child Welfare Police Officer, produced within twenty-four hours excluding journey time; never a police lockup or jail; State rules for who may produce the child and how he is sent to an observation home or place of safety.
• 11: the person in charge has responsibility as if he were the parent, including maintenance, and the child continues in his charge for the period stated by the Board despite a parent's claim, unless the Board finds the parent fit.
• 12(1): bailable or non-bailable, notwithstanding the Code, the child shall be released on bail with or without surety, or placed under a probation officer's supervision, or in the care of a fit person; refused only for association with a known criminal, moral, physical or psychological danger, or defeating the ends of justice, with reasons and circumstances recorded.
• 12(2) to (4): refused by the police, kept only in an observation home or place of safety; refused by the Board, an order for the same, for a specified period during the inquiry; conditions unfulfilled in seven days, produced for modification.
• The probation officer across the Act: s.2(48) who he is; s.13(1)(ii) the social investigation report in two weeks; s.8(3)(e) the Board's direction, report within fifteen days of first production; s.13(2) informed on bail; s.12(1) supervision as an alternative to a surety; s.30(iii) social investigation for the Committee; s.19(2) follow up in the individual care plan; s.19(4) the yearly progress and ill-treatment report; s.20(1) the twenty-one evaluation; s.97(1) the report on which a child may be released from an institution.
• 13: the Child Welfare Police Officer or special juvenile police unit informs the parent or guardian, directing their presence at the Board, and the probation officer or Child Welfare Officer, for a social investigation report within two weeks; on release on bail, the Board informs the probation officer or Child Welfare Officer.

Test yourself

1. Where must a child alleged to be in conflict with law never be kept? In a police lockup or a jail; the proviso to section 10(1) is absolute.

2. Within what time must the child be produced before the Board? Without any loss of time and within twenty-four hours of apprehension, excluding the time necessary for the journey from the place where he was apprehended.

3. Does it matter that the offence is non-bailable? No. Section 12(1) applies to a person apparently a child alleged to have committed a bailable or non-bailable offence alike, and operates notwithstanding the Code of Criminal Procedure.

4. On what grounds may bail be refused to a child? Only three: that the release is likely to bring him into association with any known criminal; that it would expose him to moral, physical or psychological danger; or that it would defeat the ends of justice. The Board must record the reasons and the circumstances leading to the decision.

5. What are the alternatives to release on a surety? Release on bail without surety, placement under the supervision of a probation officer, or placement under the care of any fit person, section 12(1).

6. What happens if the child cannot meet the bail conditions? If he is unable to fulfil them within seven days of the bail order, he shall be produced before the Board for modification of the conditions, section 12(4).

7. What are the duties of the probation officer under this Act? The Act does not list them in one place. He prepares and submits the social investigation report on the child's antecedents, family background and circumstances, within two weeks of being informed by the police under section 13(1)(ii) and within fifteen days of first production when directed by the Board under section 8(3)(e); he is informed when a child is released on bail, section 13(2); a child may be released under his supervision instead of on bail, section 12(1); the Committee may direct him to conduct a social investigation, section 30(iii); he follows up under the individual care plan, section 19(2), makes the yearly progress and ill-treatment report for a child in a place of safety, section 19(4), and the evaluation when the child attains twenty-one, section 20(1); and a child may be released from a Children's Home or special home on his report, section 97(1).

7. Who prepares the social investigation report, and by when? The probation officer, or a Child Welfare Officer if no probation officer is available, and it must be prepared and submitted to the Board within two weeks, section 13(1)(ii).