FAQs on child arrests
This topic provides information about legal provisions regarding arrest of children.
What happens when children are arrested?
As a child can I be arrested in the first place?
Yes, the police can arrest children if they believe they have committed a crime. Typically, police stations will have a child welfare protection officer ( Section 107 of JJ Act 2015) and in each district and city, there will be at least one special juvenile police unit. When the police arrest a child on suspicion of committing a crime, this should normally be done by a Special Juvenile Police Unit. If a regular police officer arrests the child, then the child should immediately be placed under the care of the Juvenile Police Unit, or a designated Child Welfare Police Officer. (Section 10 of JJ Act 2015 ).
The police can also arrest children who have run away from an institution where they were placed under the JJ Act (Section 26 of JJ Act 2015 ), such as an Observation Home (Section 47 of JJ Act 2015) , Special Home or Place of Safety (Section 49 of JJ Act 2015).
In certain circumstances for example, with respect to habitual thieves), the Magistrate can order that adults be detained in prison if they do not execute a bond for good behaviour or peace. (The Code of Criminal Procedure 1973 - Section 106). Even though arrests of children are allowed, the Magistrate cannot order a similar detention with respect to children. (Section 22 of JJ Act 2015).
What are the responsibilities of the police when they arrest me?
The police cannot handcuff you or exert any force when they arrest you (Rule 8(3)(ii), Model Rules).
- The police officer must, immediately, inform your parents or guardians.
- If they do not release you on bail, then the officer must tell them the location of the JJB where you will be produced. (Section 13 of JJ Act 2015).
- The police officer, or probation officer if there is one, is also required to prepare a ‘Social Investigation Report’ within two weeks and submit it to the JJB. This contains details that would be helpful for the JJB to make its decisions, such as your family background. (Section 13 of JJ Act 2015.)
Can the police keep me in jail?
A child can never be kept in a police lockup or regular jail. The police must bring you before the JJB within 24 hours (Section 10 of JJ Act 2015). If the police does not release you immediately on bail, you can only be kept in an Observation Home (Section 12 of JJ Act 2015) until you are taken to the JJB (within 24 hours). The police are also supposed to inform a child welfare officer who is supposed to accompany you to the JJB for the first hearing. (Rule 8(2)(iii), Model Rules).
I don’t know why the police have arrested me. What can be done?
The police have a duty to tell your parents or guardians why you have been arrested. They can ask the police for the charges under which you have been arrested.
If the police have registered an FIR (or first information report), they have a duty to give your parents or guardians a copy of this FIR (Rule 8(3)(iii), Model Rules). An FIR is the document prepared by the police when they get any information about a crime that has occurred. To know more about FIRs click here.
How does the JJB decide when to detain me?
- The JJB has the power to detain you (Section 12 of JJ Act 2015), though, this is the exception and the rule is bail. If the JJB decides to allow for your release on bail, your parents or guardians are supposed to submit an undertaking in a certain form (Form 2, Model Rules).
- If you are unable to satisfy the bail conditions for a week, then the JJB is required to modify these to help you (Section 12 of JJ Act 2015).
- The JJB may decide to deny bail if this is against your interests. For instance, if this would bring you into contact with criminals or expose you to moral, physical or psychological danger. (Section 12 of JJ Act 2015).
So if I’m not going to be in jail, where will they send me?
While the inquiry is going on, you can only be detained in Observation Homes or a Place of Safety. The JJB has to tell you how long you will be detained in the order (Section 12 of JJ Act 2015).
What happens after arrest?
What happens to you once you've been arrested depends on the kind of the crime you've been accused of.
What are Petty, Serious, and Heinous Offences?
The JJ Act 2015 inserted a new scheme which divided crimes into three categories: Petty, Serious and Heinous.
- Petty Offences : Crimes for which maximum punishment is imprisonment up to 3 years. These include crimes such as assault, causing simple hurt, theft, forgery etc.
- Serious Offences : Crimes for which punishment between 3 to 7 years’ imprisonment. These include crimes such as attempt to commit culpable homicide, causing grievous hurt, cheating etc.
- Heinous Offences : Crimes for which punishment is imprisonment for 7 years or more. These include crimes such as murder, rape, dacoity etc.
How are things different for the different types of crimes?:
The manner in which the JJB must conduct its proceedings will now depend on the type of the crime you have been accused of committing. Now, the JJB must first look at the nature of the offence. Different procedures are adopted for different kinds of offences.
- Time Limits: In all cases, the JJB is required to complete its inquiry within 4 months. This may be extended to 6 months. But any inquiry pending after 6 months expire shall be terminated in cases of Petty Offences (Section 14 of JJ Act 2015 ).
- No automatic termination happens in cases of Serious or Heinous Offences – here the courts can grant an extension even beyond 6 months. (Section 14 of JJ Act 2015.)
- Different Legal Procedure: Cases with Petty Offences are disposed of in the same way a Summary Trial is conducted (Section 14 of JJ Act 2015 ). To know about summary trials click here. Those with Serious Offences are conducted the way Summons cases are tried under the Cr.P.C (Section 14 of JJ Act 2015.)
- Different rules on FIR Registration: For Petty Offences or Serious Offences, the police are not supposed to register a FIR. They are supposed to record it in the general diary along with the social background report. Only when a Heinous Offence is alleged can the police register an FIR against a child (Rule 8(1), Model Rules);
- Different Duties on Police Investigation: In cases of Heinous Offences, the police must produce statements of witnesses and other documents collected during investigation within one month from the date when the child was first produced. Copies of these have to be given to the child or their parents [Rule 10(5), Model Rules]. In other cases, the police must file the Final Report within two months from the date of information [Rule 10(6), Model Rules).
What happens when it is a Heinous Offence?
If the inquiry is about Heinous Offences, then it becomes crucial to determine whether the child is above or below the age of 16 years. If the child is below 16 years, the JJB conducts an inquiry just like it would for a Serious Offence i.e., where a summons case procedure is followed. But if the child is older than 16, then the JJB must conduct a ‘Preliminary Assessment’ (Section 14 of JJ Act 2015.) .
What is a Preliminary Assessment?
If a child is above 16 years, and is alleged to have committed a Heinous Offence, the JJ Act allows for the proceedings to be conducted under normal procedures like an adult and not the child-friendly procedures of the JJ Act. To decide whether a child should be tried by regular procedure, the JJB must conduct a ‘Preliminary Assessment’ . (Section 14 of JJ Act 2015).
The Preliminary Assessment is an attempt to find out whether the child was mature enough to understand her acts and their consequences. The JJB can take the help of trained psychologists and experts to arrive at its conclusions, (Section 15 of JJ Act 2015), but must complete the inquiry within 3 months. (Section 14 of JJ Act 2015).
If the JJB passes an order to keep proceedings under the Act and not send the case to the regular court, the government can appeal against this order.
So how are Children tried as Adults?
When the JJB decides that a child should be tried as an adult after a Preliminary Assessment, it sends the case to a Children’s Court (Section 18 of JJ Act 2015 . The Children’s Court may be an existing Sessions Court that is dealing with child-specific laws, or a special court set up for the purpose of dealing with crimes under the JJ Act. (Section 2 of JJ Act 2015).
How does a Children’s Court work?
The Children’s Court may do one of the following two things (Section 19 of JJ Act 2015).
- It may decide that the child must be treated like an adult for the trial, and then conduct a regular trial and pass final judgment. While the Children’s Court can generally pass the maximum sentence for a Heinous Offence (i.e., it can pass a sentence of more than 3 years), it cannot award the death penalty or life imprisonment with the possibility of release in such cases.
- It may decide that there is no need to conduct a trial as an adult, and may conduct an inquiry like the JJB, passing orders under Section 18 of the JJ Act.
In all proceedings, the Children’s Court must ensure a child-friendly atmosphere is maintained. It must also ensure that the child be sent to a Place of Safety if detained during proceedings. If she is found guilty of a having committing the Heinous Offence, she will be sent to the Place of Safety until she becomes 21 years old, after which she can be sent to jail (Section 20 of JJ Act 2015.) . The child should have access to reformative services (like education, skill development) when she is at the Place of Safety.
Source : Nyaaya