Orders the Board May Pass

Sub-section (2). Where it appears to the Board that such a child is in need of care and protection, it may refer the child to the Committee with appropriate directions.

Sub-section (2) is the same idea as section 8(3)(g) and is worth naming in an answer. A finding that the child did nothing wrong does not end the Board's concern with him; if he needs looking after, the Board hands him to the Child Welfare Committee.

Section 18: where the child has committed an offence

Sub-section (1), when it applies. Where a Board is satisfied on inquiry that:

• a child, irrespective of age, has committed a petty offence, or a serious offence; or
• a child below the age of sixteen years has committed a heinous offence; or
• a child above the age of sixteen years has committed a heinous offence and the Board has, after preliminary assessment under section 15, disposed of the matter,

then, notwithstanding anything to the contrary in any other law, and based on the nature of the offence, the specific need for supervision or intervention, the circumstances as brought out in the social investigation report, and the past conduct of the child, the Board may, if it so thinks fit, pass one of the following orders.

The third limb, the words in italics in the Act about a child above sixteen after a section 15 assessment, was inserted by Act 23 of 2021 with effect from 1 September 2022. It closes the obvious gap: before it, the section did not in terms say what the Board could do with the older child in a heinous case whose matter it had decided to keep.

The seven orders.

(a) allow the child to go home after advice or admonition, following appropriate inquiry and counselling to the child and to his parents or guardian; (b) direct the child to participate in group counselling and similar activities; (c) order the child to perform community service under the supervision of an organisation or institution, or a specified person, persons or group of persons identified by the Board; (d) order the child, or the parents or guardian, to pay a fine. Proviso: where the child is working, it may be ensured that the provisions of any labour law in force are not violated; (e) direct the child to be released on probation of good conduct and placed under the care of any parent, guardian or fit person, on that person executing a bond, with or without surety, for the good behaviour and the child's well-being, for any period not exceeding three years; (f) direct the child to be released on probation of good conduct and placed under the care and supervision of any fit facility, for the same purposes, for any period not exceeding three years; (g) direct the child to be sent to a special home for such period, not exceeding three years, as it thinks fit, for providing reformative services including education, skill development, counselling, behaviour modification therapy and psychiatric support during the stay. Proviso: if the conduct and behaviour of the child has been such that it would not be in the child's interest, or in the interest of other children housed in a special home, the Board may send the child to the place of safety.

Sub-section (2), the add-on orders. If an order is passed under clauses (a) to (g), the Board may in addition order the child to:

(i) attend school; or (ii) attend a vocational training centre; or (iii) attend a therapeutic centre; or (iv) be prohibited from visiting, frequenting or appearing at a specified place; or (v) undergo a de-addiction programme.

Sub-section (3), transfer to the Children's Court. Where the Board, after preliminary assessment under section 15, passes an order that there is a need for trial of the child as an adult, the Board may order transfer of the trial of the case to the Children's Court having jurisdiction to try such offences.

Recall section 7(3): an order under section 18(3) may be made only with at least two members including the Principal Magistrate present. That is the only order in the Act singled out that way, and it is the most serious order the Board can pass.

Section 21: what may never be ordered

No child in conflict with law shall be sentenced to death, or for life imprisonment without the possibility of release, for any such offence, either under the provisions of this Act or under the provisions of the Indian Penal Code, 1860, or any other law for the time being in force.

Four points about this sentence.

It is absolute. No offence is excepted.

It survives a transfer under section 18(3). The words "or under the provisions of the Indian Penal Code or any other law" mean the bar follows the child into the Children's Court, and section 19(1)(i) says the Children's Court passes orders subject to section 21.

It forbids two things, not one. Death, and life imprisonment without the possibility of release.

And it does not forbid life imprisonment as such, provided the possibility of release remains.

A worked example

The Board completes an inquiry into a serious offence alleged against a boy of fifteen.

It finds he did not commit it. It shall pass an order to that effect, section 17(1); and if it appears that he is in need of care and protection, it may refer him to the Committee with appropriate directions, sub-section (2).

It finds that he did. Now section 18(1) applies, because the offence is serious and the section covers a child irrespective of age for petty and serious offences.

What must the Board weigh? The nature of the offence, the specific need for supervision or intervention, the circumstances brought out in the social investigation report, and the past conduct of the child.

The offence is minor and the family is supportive. The Board may allow him to go home after advice or admonition, with counselling of the child and his parents, clause (a); or direct group counselling, clause (b); or order community service under supervision, clause (c).

A fine is thought appropriate. It may be ordered against the child or the parents or guardian, clause (d); and if the child is working, the Board may ensure that labour laws are not violated.

The family needs support but he can stay with them. Probation of good conduct in the care of a parent, guardian or fit person on a bond, with or without surety, for not more than three years, clause (e). Where no such person is available, the same for a fit facility, clause (f).

Nothing short of an institution will do. A special home, for not more than three years, for reformative services, clause (g). And if his conduct is such that a special home is not in his interest or in the interest of the other children there, the Board may send him instead to a place of safety, proviso.

The Board also wants him back in school and off drugs. It may in addition order him to attend school and to undergo a de-addiction programme, section 18(2).

Change the facts: a heinous offence, and he was seventeen at the time. Section 15 applies. If the Board, on the preliminary assessment, finds a need for trial as an adult, it may order transfer of the trial to the Children's Court, section 18(3), and that order needs two members including the Principal Magistrate, section 7(3).

The Children's Court convicts him of murder. It may not sentence him to death, nor to life imprisonment without the possibility of release, section 21.

Distinctions

What this does NOT mean

Section 18 is not a sentencing provision. The Act does not "sentence" a child; the Board passes orders, and four of the seven do not involve any institution at all.

A special home is not the ordinary outcome. It is the last of the seven clauses, and section 3's principle makes institutional care a step of last resort after reasonable inquiry.

Three years is a ceiling, not a term. Clauses (e), (f) and (g) all say not exceeding three years.

A fine is not always on the child. Clause (d) allows it against the parents or the guardian.

And section 21 does not disappear on a transfer. It applies under this Act or the Indian Penal Code or any other law, and section 19(1)(i) makes the Children's Court's orders subject to it.

Quick revision

• 17: where the child has not committed any offence, an order to that effect; and a reference to the Committee if he is in need of care and protection.
• 18(1): applies to a petty or serious offence irrespective of age, a heinous offence by a child below sixteen, and, since 2021, a heinous offence by a child above sixteen whose matter the Board kept after the section 15 assessment; weigh the nature of the offence, need for supervision, social investigation report and past conduct.
• The seven orders: (a) advice or admonition and home; (b) group counselling; (c) community service; (d) fine on the child, parent or guardian; (e) probation with a parent, guardian or fit person on a bond, three years; (f) probation with a fit facility, three years; (g) special home, three years, reformative services, or a place of safety where his conduct requires.
• 18(2): in addition, school, vocational training centre, therapeutic centre, prohibition from a specified place, or a de-addiction programme.
• 18(3): after the section 15 assessment, a finding of a need for trial as an adult lets the Board transfer the trial to the Children's Court; and by section 7(3) that order needs two members including the Principal Magistrate.
• 21: no death sentence, and no life imprisonment without the possibility of release, for any offence, under this Act, the Indian Penal Code, or any other law.

Test yourself

1. What does the Board do if it finds the child committed no offence? It shall pass an order to that effect notwithstanding anything to the contrary in any other law, and if it appears that the child is in need of care and protection it may refer him to the Committee with appropriate directions, section 17.

2. List the orders under section 18(1). Allow the child to go home after advice or admonition with counselling; direct participation in group counselling; order community service; order the child or his parents or guardian to pay a fine; release on probation of good conduct in the care of a parent, guardian or fit person on a bond; release on probation in the care and supervision of a fit facility; and send him to a special home. The last three are each for a period not exceeding three years.

3. What must the Board take into account before passing such an order? The nature of the offence, the specific need for supervision or intervention, the circumstances brought out in the social investigation report, and the past conduct of the child.

4. What further orders may accompany them? Orders to attend school, to attend a vocational training centre, to attend a therapeutic centre, prohibiting the child from visiting, frequenting or appearing at a specified place, or requiring him to undergo a de-addiction programme, section 18(2).

5. When may a child be sent to a place of safety instead of a special home? Where his conduct and behaviour have been such that a special home would not be in his interest, or in the interest of the other children housed there, proviso to section 18(1)(g).

6. What is the effect of section 18(3)? Where the Board, after the preliminary assessment under section 15, passes an order that there is a need for trial of the child as an adult, it may order transfer of the trial of the case to the Children's Court having jurisdiction.

7. State section 21. No child in conflict with law shall be sentenced to death or for life imprisonment without the possibility of release, for any such offence, either under the provisions of this Act or under the Indian Penal Code, 1860 or any other law for the time being in force.