The Children's Court, and the Child Who Turns Twenty-One

(i) there is a need for trial of the child as an adult as per the provisions of the Code of Criminal Procedure, 1973, and pass appropriate orders after trial, subject to the provisions of this section and section 21, considering the special needs of the child, the tenets of fair trial and maintaining a child friendly atmosphere; or (ii) there is no need for trial of the child as an adult, and it may conduct an inquiry as a Board and pass appropriate orders in accordance with section 18.

Sub-section (2), the final order. The Children's Court shall ensure that the final order includes an individual care plan for the rehabilitation of the child, including follow up by the probation officer or the District Child Protection Unit or a social worker.

Sub-section (3), where he is kept. The Children's Court shall ensure that the child who is found to be in conflict with law is sent to a place of safety till he attains the age of twenty-one years, and thereafter the person shall be transferred to a jail.

Proviso: reformative services, including educational services, skill development, alternative therapy such as counselling, behaviour modification therapy, and psychiatric support, shall be provided to the child during the period of his stay in the place of safety.

Sub-section (4), monitoring. The Children's Court shall ensure that there is a periodic follow up report every year by the probation officer or the District Child Protection Unit or a social worker, as required, to evaluate the progress of the child in the place of safety and to ensure that there is no ill-treatment to the child in any form.

Sub-section (5). Those reports shall be forwarded to the Children's Court for record and follow up.

Section 20: the child who turns twenty-one

Sub-section (1), the evaluation. When the child in conflict with law attains the age of twenty-one years and is yet to complete the term of stay, the Children's Court shall provide for a follow up by the probation officer, the District Child Protection Unit, a social worker, or by itself, to evaluate:

• whether he has undergone reformative changes; and
• whether he can be a contributing member of society,

and for this purpose the progress records under section 19(4), along with the evaluation of relevant experts, are to be taken into consideration.

Sub-section (2), the two outcomes. After completing that procedure, the Children's Court may:

(i) decide to release the child on such conditions as it deems fit, including the appointment of a monitoring authority for the remainder of the prescribed term of stay; or (ii) decide that the child shall complete the remainder of his term in a jail.

Proviso: each State Government shall maintain a list of monitoring authorities and monitoring procedures as may be prescribed.

Sections 22 to 26: five protections

Section 22, no security proceedings. Notwithstanding anything to the contrary in the Code of Criminal Procedure, 1973 or any preventive detention law for the time being in force, no proceeding shall be instituted and no order shall be passed against any child under Chapter VIII of that Code.

That is the chapter on security for keeping the peace and for good behaviour. It cannot be used against a child at all.

Section 23, no joint proceedings.

Sub-section (1). Notwithstanding section 223 of the Code of Criminal Procedure, 1973 or any other law, there shall be no joint proceedings of a child alleged to be in conflict with law with a person who is not a child.

Sub-section (2). If during the inquiry by the Board or the Children's Court the person alleged to be in conflict with law is found not to be a child, he shall not be tried along with a child.

Section 223 of the old Code was the section on what persons may be charged jointly; the corresponding provision of the Bharatiya Nagarik Suraksha Sanhita is section 246. The point survives the change of Code: a child is never tried with an adult.

Section 24, removal of disqualification.

Sub-section (1). Notwithstanding anything in any other law, a child who has committed an offence and has been dealt with under this Act shall not suffer any disqualification attached to a conviction of an offence under such law.

Proviso: sub-section (1) does not apply to a child who has completed or is above sixteen and is found to be in conflict with law by the Children's Court under section 19(1)(i), that is, after a trial as an adult.

Sub-section (2), the records. The Board shall order the police, or the Children's Court its own registry, that the relevant records of such conviction shall be destroyed after the expiry of the period of appeal, or a reasonable prescribed period.

Proviso: in the case of a heinous offence where the child is found to be in conflict with law under section 19(1)(i), the relevant records shall be retained by the Children's Court.

Both parts of section 24 have the same exception, and it is the same class of child: the one tried as an adult under section 19(1)(i). He keeps the disqualification, and his record is kept.

Section 25, pending cases. Notwithstanding anything in this Act, all proceedings in respect of a child alleged or found to be in conflict with law pending before any Board or court on the date of commencement of this Act shall be continued in that Board or court as if this Act had not been enacted.

Section 26, the run away child.

Sub-section (1). Notwithstanding anything to the contrary in any other law, any police officer may take charge of a child in conflict with law who has run away from a special home, an observation home, a place of safety, or from the care of a person or institution under whom the child was placed under the Act.

Sub-section (2). He shall be produced within twenty-four hours, preferably before the Board which passed the original order, if possible, or to the nearest Board where the child is found.

Sub-section (3). The Board shall ascertain the reasons for the child having run away and pass appropriate orders for the child to be sent back either to the institution or person from whose custody he ran away, or any other similar place or person, as the Board deems fit. Proviso: the Board may also give additional directions regarding any special steps that may be necessary in the best interest of the child.

Sub-section (4). No additional proceeding shall be instituted in respect of such child.

Sub-sections (3) and (4) together are the answer to the obvious question. Running away is not an offence under the Act, and the Board's response is to ask why and to send him back or somewhere better, not to punish.

A worked example

The Board, after a preliminary assessment, transfers a seventeen-year-old's case to the Children's Court under section 18(3).

Is the Children's Court bound? No. On receipt of the assessment it may decide that there is no need for trial as an adult, and then conduct an inquiry as a Board and pass orders under section 18, section 19(1)(ii).

It decides there is a need. It tries him as per the Code of Criminal Procedure, but subject to section 19 and section 21, and considering his special needs, the tenets of fair trial and a child friendly atmosphere, clause (i).

He is found guilty. The final order must include an individual care plan with follow up by a probation officer, the District Child Protection Unit or a social worker, section 19(2). He may not be sentenced to death or life imprisonment without the possibility of release, section 21.

Where does he go? To a place of safety till he attains twenty-one years, with educational services, skill development, counselling, behaviour modification therapy and psychiatric support throughout, section 19(3). Every year a follow up report evaluates his progress and ensures there is no ill-treatment, sub-section (4), and the reports go to the Court, sub-section (5).

He turns twenty-one with two years of the term left. The Children's Court evaluates whether he has undergone reformative changes and can be a contributing member of society, using the yearly progress records and expert evaluation, section 20(1).

The evaluation is favourable. The Court may release him on such conditions as it deems fit, appointing a monitoring authority for the remainder of the term, section 20(2)(i), from the list the State Government maintains.

It is not. He completes the remainder of his term in a jail, clause (ii).

Later he applies for a government post. Section 24(1) would ordinarily remove the disqualification, but the proviso takes it away from a child of sixteen or above found to be in conflict with law by the Children's Court under section 19(1)(i); and, the offence being heinous, the records are retained by the Children's Court, proviso to sub-section (2).

Now change the facts entirely. Two people are charged, one a child and one an adult. There can be no joint proceedings, section 23(1); and if a person turns out during the inquiry not to be a child, he shall not be tried along with a child, sub-section (2).

The police wish to take security for good behaviour from a child. They may not: no proceeding under Chapter VIII of the Code shall be instituted and no order passed against any child, section 22.

A boy runs away from an observation home. Any police officer may take charge of him, and he is produced within twenty-four hours, preferably before the Board that passed the original order, section 26(1) and (2). The Board ascertains why he ran away and sends him back or elsewhere as it deems fit, and no additional proceeding is instituted against him.

Distinctions

What this does NOT mean

A transfer under section 18(3) does not decide anything. The Children's Court decides for itself under section 19(1), and may keep the matter and act as a Board.

Trial as an adult does not mean an adult prison. Section 19(3) sends him to a place of safety till twenty-one, with reformative services and yearly follow up.

Twenty-one is not automatically the end of protection. Section 20 requires an evaluation and permits a conditional release with a monitoring authority.

Section 24 does not protect every child. The child tried as an adult under section 19(1)(i) keeps the disqualification, and in a heinous case his records are retained.

And running away is not an offence. Section 26(4) says no additional proceeding shall be instituted.

Quick revision

• 19(1): the Children's Court decides for itself whether there is a need for trial as an adult; if not, it acts as a Board under section 18; if so, it tries him under the Code subject to section 21, with special needs, fair trial and a child friendly atmosphere.
• 19(2) to (5): the final order carries an individual care plan; he goes to a place of safety till twenty-one and thereafter to a jail; reformative services throughout; a yearly follow up report on his progress and against ill-treatment, forwarded to the Court.
• 20: at twenty-one with the term unfinished, an evaluation of reformative change and whether he can be a contributing member of society, on the progress records and expert evaluation; then either release on conditions with a monitoring authority or the remainder in a jail; the State keeps a list of monitoring authorities.
• 22 to 26: no Chapter VIII security proceedings against a child; no joint proceedings with a non-child, and a person found not to be a child is not tried with a child; no disqualification and records destroyed, except for the child tried as an adult under s.19(1)(i) and, in a heinous case, records retained; cases pending at commencement continue as before; a run away child is produced within twenty-four hours, the Board ascertains the reasons and sends him back, and no additional proceeding follows.

Test yourself

1. Is the Children's Court bound by the Board's preliminary assessment? No. Under section 19(1) it may decide that there is a need for trial as an adult, or that there is no such need, in which case it conducts an inquiry as a Board and passes orders under section 18.

2. Where is a child kept who has been tried as an adult and found guilty? In a place of safety till he attains the age of twenty-one years, and thereafter he is transferred to a jail; reformative services must be provided during his stay, section 19(3).

3. What happens when he turns twenty-one with his term unfinished? The Children's Court evaluates, on the yearly progress records and expert evaluation, whether he has undergone reformative changes and can be a contributing member of society, and may either release him on conditions with a monitoring authority for the remainder of the term, or direct that he complete it in a jail, section 20.

4. Can a child be tried jointly with an adult? No. Section 23(1) forbids joint proceedings of a child alleged to be in conflict with law with a person who is not a child, notwithstanding section 223 of the Code of Criminal Procedure, 1973.

5. Does a finding under the Act disqualify a child? No; section 24(1) removes any disqualification attaching to a conviction. But the proviso excepts a child of sixteen or above found to be in conflict with law by the Children's Court under section 19(1)(i).

6. Are the records destroyed? Yes, by order of the Board to the police, or of the Children's Court to its own registry, after the expiry of the period of appeal or a reasonable prescribed period; except that in a heinous offence under section 19(1)(i) the records are retained by the Children's Court.

7. What happens to a child who runs away from an observation home? Any police officer may take charge of him; he is produced within twenty-four hours, preferably before the Board that passed the original order; the Board ascertains why he ran away and orders him sent back or to another suitable place or person; and no additional proceeding is instituted, section 26.