After the acceptance of the notion that moral delinquency acts as the precondition of criminal wrong, a conclusion was made that young children(minor) are devoid of liability of crime. But there was no certainty as to the specified age at which a child undoubtedly should be held responsible for the offense committed. At the initial stage twelve years was considered to be the age for criminal responsibility, later the termination of immunity was changed to seven years as per the severance of law. [1]
Introduction
Blackstone has described the grounds for the exemption of minors from criminal responsibility in the lines below:
Infancy is a defect of the understanding, and infants under the age of discretion ought not to be punished by any criminal prosecution whatsoever.[2]
However, considering the surroundings and heinousness of crimes committed, till then there has been no absolute rule regarding the age of discretion of crime. Therefore, to some extent it depends on the nature of offense committed because a crime can never be justified.
Scope of immunity
An infant below a particular age is provided immunity under section 82 and 83 of the Penal Code from criminal liability or responsibility. Section 82 of the Penal Code protects a child under 7 years of age from any criminal responsibility, on the other hand section 83 provides partial or fragmentary immunity to a child above 7 and under 12 years of age. This rule has been formed on the basis of a general hypothesis that a minor below a certain age doesn’t have that mental capability of distinguishing between right and wrong, keeping in view that no criminal liability could be imposed on them or has to be treated differently. This makes it a holder of absolute immunity for the minor. [3]
A careful scrutiny of provisos mentioned under sections 82 and 83, IPC, reveal an amazing fact that while section 82 grants immunity to a child under seven years and section 83 to one above seven years, no provision has clearly recognised immunity to a minor of exactly seven year of age. This ambiguity can be removed by mending section 82 of the Penal Code by reinstating the word ‘under’ with ‘up to’ after ‘a child’ and before ‘seven years’.
Minority
As per Section 82 of IPC, it is considered that if an act contrary to law is committed by a minor of under seven years of age then it shall not be an offence in the eyes of law. Thus, it can be determined that a person under seven years of age shall not be criminally liable for any offense committed for the absence of criminal intent or mental element of offensive nature.
Taking a look towards Section 83 of IPC, it can be summarized that any person under the age of twelve but above the age of seven shall be absolved from criminal liability or responsibility for any wrong committed provided that such child has not attained that level of understanding or maturity to know his acts and omissions.
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Judicial pronouncements
In Krishna Bhagwan v. State of Bihar [1], A, a child stole a necklace and immediately resold it to B. The court after observing the facts held that the selling of the necklace immediately to the stealing of the same shows that the child has attained the level of maturity of understanding.
The innocence of a child is presumed to be based on the principle that “the younger the child is in age, the lesser the probability of being corrupt”. The level of maturity of his understanding can be deduced from the nature of the act and his subsequent conduct and other allied factors, such as his behavior, conduct and appearance in court.
In Hiralal Mallick v. State of Bihar[2], the Court held that a child below 7 years is completely absolved from any criminal liability but a child between 7 to 12 years of age is qualified to avail the defence of doli incapax, if it is proved before the court that he couldn’t be held liable for his act as he didn’t attain the level of sufficient maturity of understanding to know and judge the nature and consequences of his act. This presumption may be rebutted by evidence of “mischievous discretion, i.e. knowledge that what was done was morally wrong”.
In Ulla v. King, the accused, a minor girl about 10 years old was scolded by her father-in-law and her husband, they even attempted to beat her. A few days later, she out of revenge struck her husband on his neck with a sharp instrument while he was asleep, which resulted in his death. After the assault she ran away and concealed herself completely.
The court after analysing the facts and spotting her conduct before and after the incident came to a conclusion that she was doli incapax, i.e., capable of understanding the nature of the act committed by her which undoubtedly made her guilty of murder. However, the Court considering her age remanded her for a reprieve of sentence giving effect to a lesser punishment.
Juvenile Justice (Care and Protection of Children) Act, 2000
In order to protect and safeguard the interest of the minors against any sort of injustice, exploitation and abuse, the authority of General Assembly of the UN on 20th Nov, 1989 came up with the Convention on the Rights of the Child wherein, the rules to be adhered to in order to prevent the children from being exploited has been discussed and prescribed accordingly. The Government of India, with the same objective, ratified the Convention on 11th Dec 1992 and redrafted the same existing law to juveniles in 2000 in order to raise the Nation’s Standard Minimum Rules for the application and administration of justice to the juveniles. Thereafter, the Juvenile Justice (Care and Protection of Children) underwent repeal and the Juvenile Justice (Care and Protection of Children) Act was enacted by the Parliament which ultimately came into force on 30th Dec 2000.
Salient features of the Juvenile Justice Act, 2000
Important features of the act are as follows:-
(I) Children below 18 years are prohibited from execution: This act prevents the children below 18 years to be convicted with punishments such as with death sentence or imprisonment for life for any offence under Indian Penal Code.
(II) Separate trial for children: The juveniles are protected with separate trials which has been prescribed under section 18 of the Act, and the provisions given under Chapter VIII of the CrPc 1973, relating to the “Security for keeping the Peace and Good behaviour” will not be applicable to the juveniles.
(III) Establishment of the Juvenile Police Units: In order to enquire and solve the problems related to juvenile crimes in an efficient and effective manner a provision has been enacted for the establishment of Special Juvenile Police Units in every police station, which has to be manned by trained officers so that the juveniles could be interrogated in a friendly and healthy environment.
(IV) Once acquitted no appeal can be made: According to this act, no appeal is allowed to be made against the order of acquittal made by the Juvenile Justice Board for trial of a Juvenile who was alleged to have committed an offence.
Conclusion
Therefore, it is presumed that the children under seven years and between seven to twelve years are in such a state that they aren’t able to distinguish between right and wrong, but the circumstance and nature of the crime should always be taken into consideration for providing the victim with justice. For example, in the case of Nirbhaya, the minor was the one to commit the crime more grievously, but he was defended for being minor. Such instances must be taken as exceptional and must be punished as regards to their maturity of understanding, so that no one is left with injustice. Minority is a defense and according to its codification minors are sure to be defended but matters must be looked into with proper clearance of the facts and by applying justice, equity and good conscience.
The world has been subjected to advancement in every possible way, and the most affected group to such modernity is the “therefore, the laws have to be altered according to the need and betterment of the society.
References
[1] 1991 1 BLJR 321.
[2] 1977 Cr LJ 1921.
BY ANANYA SAHA | INDIAN INSTITUTE OF LEGAL STUDIES