How Those Offences Are Tried

Sub-section (4), the forum. Notwithstanding anything in the Code of Criminal Procedure, 1973, the Commissions for Protection of Child Rights Act, 2005, or the Protection of Children from Sexual Offences Act, 2012, offences under this Act shall be triable by the Children's Court.

Two things about sub-section (4). It is the Children's Court, which section 2(20) defines as a court under the Commissions for Protection of Child Rights Act, 2005, or a POCSO Special Court, and, where none has been designated, the Court of Sessions having jurisdiction. And the non obstante clause names three statutes, which is what makes the trial of a Chapter IX offence go to that court even where POCSO would otherwise send it elsewhere.

Working the classification

Take the Chapter IX offences one at a time against the three sub-sections. That is the exercise the section is set for.

Notice what falls out of the table. Almost every offence in Chapter IX now sits in the middle band, which is why the 2021 substitution mattered so much: it changed the mode of investigation for the great majority of offences against children under this Act. Only the aggravated forms, carrying ten years, remain cognizable.

Sections 87 to 89

Section 87, abetment. Whoever abets any offence under this Act, if the act abetted is committed in consequence of the abetment, shall be punished with the punishment provided for that offence.

Explanation, inserted in 2021. "Abetment" has the same meaning as assigned to it in section 107 of the Indian Penal Code, 1860.

Section 88, alternative punishment. Where an act or omission constitutes an offence punishable under this Act and also under any other law for the time being in force, then, notwithstanding anything contained in any such law, the offender found guilty shall be liable for punishment under such law which provides for punishment which is greater in degree.

Section 89, an offence by a child. Any child who commits any offence under this Chapter shall be considered as a child in conflict with law under this Act.

Section 89 closes a loop that would otherwise be untidy. Chapter IX offences are committed against children, but nothing stops a child committing one; a boy of seventeen may sell a child, or may publish another child's identity. Section 89 says he is dealt with as a child in conflict with law, that is by the Board, and not as an adult offender.

A worked example

A staff member of a Children's Home is alleged to have kept a child in bondage and withheld his wages.

What offence? Section 79, exploitation of a child employee, punishable with rigorous imprisonment up to five years and a fine of one lakh rupees.

Can the police register a case and investigate on their own? No. Five years falls in the middle band: three years and above but not more than seven, which section 86(2) makes non-cognizable. The police need the order of a Magistrate under the procedure for a non-cognizable offence.

Is he entitled to bail as of right? No. The same sub-section makes it non-bailable.

Who tries him? The Children's Court, section 86(4), notwithstanding the Code, the Commissions for Protection of Child Rights Act, 2005 and POCSO.

Change the facts: the cruelty left the child physically incapacitated. Now the third proviso to section 75 applies, carrying up to ten years, which is more than seven, so the offence becomes cognizable and non-bailable, section 86(1).

Another man encouraged him and the act was done because of that encouragement. He is an abettor and is punished with the punishment provided for that offence, section 87, "abetment" carrying the meaning in section 107 of the Indian Penal Code.

The same conduct is also an offence under another statute carrying seven years. Section 88 applies: the offender is liable under the law which provides the greater punishment, whichever that is.

Change again: the offence under Chapter IX was committed by a boy of sixteen. He shall be considered a child in conflict with law, section 89, and goes to the Board, not to the Children's Court as an accused adult.

Distinctions

What this does NOT mean

Section 86 is not the First Schedule. It classifies by the length of the punishment, not offence by offence.

Non-cognizable does not mean unimportant. The middle band is still non-bailable; what changes is the mode of investigation.

Section 86(4) does not send every case about a child to the Children's Court. It sends offences under this Act; an offence under POCSO is tried by the Special Court under that Act.

Section 87 does not punish every abettor. It requires that the act abetted is committed in consequence of the abetment.

And section 88 is not a choice for the prosecution. It fixes liability under the law providing the greater punishment.

Quick revision

• 86(1) to (3): more than seven years, cognizable and non-bailable; three years and above but not more than seven, non-cognizable and non-bailable; less than three years or fine only, non-cognizable and bailable. Section 86 was substituted by Act 23 of 2021 with effect from 1 September 2022, making the middle band non-cognizable.
• 86(4): offences under the Act are triable by the Children's Court, notwithstanding the Code of Criminal Procedure, 1973, the Commissions for Protection of Child Rights Act, 2005 and POCSO.
• 87: abetment is punished with the punishment provided for the offence, where the act abetted is committed in consequence; "abetment" as in section 107 of the Indian Penal Code.
• 88: where the act is an offence under this Act and any other law, the punishment is under the law greater in degree.
• 89: a child who commits a Chapter IX offence is a child in conflict with law.

Test yourself

1. How are offences under the Act classified? By the length of the punishment: more than seven years is cognizable and non-bailable; three years and above but not more than seven is non-cognizable and non-bailable; less than three years or fine only is non-cognizable and bailable, section 86(1) to (3).

2. What did the 2021 amendment change? It substituted section 86 with effect from 1 September 2022 and made the middle band, offences punishable with three years and above but not more than seven, non-cognizable, so that the police can no longer register and investigate such a case without a Magistrate's order.

3. Which court tries offences under the Act? The Children's Court, notwithstanding anything in the Code of Criminal Procedure, 1973, the Commissions for Protection of Child Rights Act, 2005, or the Protection of Children from Sexual Offences Act, 2012, section 86(4).

4. What is the punishment for abetment? The punishment provided for the offence abetted, where the act abetted is committed in consequence of the abetment; "abetment" bears the meaning in section 107 of the Indian Penal Code, section 87.

5. What if the same act is an offence under two statutes? The offender is liable for punishment under the law which provides for punishment greater in degree, notwithstanding anything in either law, section 88.

6. What if a child commits an offence under Chapter IX? He shall be considered a child in conflict with law under the Act, section 89, and is therefore dealt with by the Board.

7. Is an offence punishable with five years cognizable? No. Five years falls in the band of three years and above but not more than seven, which section 86(2) makes non-cognizable, though it remains non-bailable.