The legal provision, relevant to answer your question is given in Section 9 of the Juvenile Justice (Care and Protection of Children) Act, 2015, which is as under:
“9. Procedure to be followed by a Magistrate who has not been empowered under this Act.—(1) When a Magistrate, not empowered to exercise the powers of the Board under this Act is of the opinion that the person alleged to have committed the offence and brought before him is a child, he shall, without any delay, record such opinion and forward the child immediately along with the record of such proceedings to the Board having jurisdiction.
(2) In case a person alleged to have committed an offence claims before a court other than a Board, that the person is a child or was a child on the date of commission of the offence, or if the court itself is of the opinion that the person was a child on the date of commission of the offence, the said court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) to determine the age of such person, and shall record a finding on the matter, stating the age of the person as nearly as may be:
Provided that such a claim may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such a claim shall be determined in accordance with the provisions contained in this Act and the rules made thereunder even if the person has ceased to be a child on or before the date of commencement of this Act.
(3) If the court finds that a person has committed an offence and was a child on the date of commission of such offence, it shall forward the child to the Board for passing appropriate orders and the sentence, if any, passed by the court shall be deemed to have no effect.
(4) In case a person under this section is required to be kept in protective custody, while the person's claim of being a child is being inquired into, such person may be placed, in the intervening period in a place of safety.”
Thus, it is quite clear that in a case where a person alleged to have committed an offence claims before a court (where he appears) that he is a child or was a child on the date of commission of the offence, or if the court itself is of the opinion that the person was a child on the date of commission of the offence, the said court after making inquiry about his age, etc., is required to send the child before the Juvenile Justice Board for passing appropriate orders and the sentence, if any.
A juvenile can file an application before the Magistrate, before whom he is produced, to claim that he was a juvenile at the time when the offence was committed. This application may be named differently in different states. Generally, it is called a Criminal Miscellaneous Application. But, the name of application (or its form) does not matter. The purpose of the application is to claim that the accused is / was a juvenile at the time of the offence and that he needs to be sent before the Juvenile Justice Board for further action under the Juvenile Justice (Care and Protection of Children) Act, 2015.
In fact, I am of the opinion even if the accused makes an oral / verbal claim before the Magistrate to the effect that he was juvenile at the time of the offence, the Magistrate is bound to record the same in court proceedings and act as above to ascertain his age and send him to the Juvenile Justice Board for further action if he is considered to be a juvenile at the time of commission of the offence.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
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