Gujarat High Court Criminal Manual (subordinate court practice), 1977
(1) The following are the important provisions of the Bombay Children Act, 1948. (a) Under section 4 of the Act, "Child" means a boy or a girl who has not attained the age of sixteen years and "youthful offender" means any child who has been found to have committed an offence. (b) Section 6 of the Act provides that with the introduction of parts II to XI of the Bombay Children Act, 1948, in any area the provisions of the Reformatory Schools Act, 1897, and of Section 27 of the Code of Criminal Procedure, 1973, shall cease to apply thereto. Section 7 provides for the establishment of Juvenile Courts by Government for any area. Section 8 gives a list of the additional criminal Courts empowered to exercise the powers of a Juvenile Court. Section 10 provides that there shall not be any joint trial of a child and an adult person in any area where a Juvenile Court is established under the Act. Section 11 provides that the procedure to be followed by the Juvenile Court and the Magistrates empowered under such section is the one prescribed for summary trials in summons cases in which an appeal lies under the Criminal Procedure Code, as far as practicable and subject to the provisions of the Act. Section 13 requires the Magistrate to separate the trial of child from that of an adult person in a case fit for being committed to the Sessions and to proceed with the trial of the case in respect of the child alone after committing the case of the adult to the Court of Sessions. Section 17 empowers the Juvenile Courts to dispense with the attendance of a child at the trial under certain circumstances. Section 21 details the factors to be taken into consideration such as the character and the age of the child, the circumstances in which the child is living, the reports made by the Probation Officer, and such other factors, before the Court passes order. Section 23 prohibits publication of names and addresses of children involved in cases or proceedings under the Act. It is, however, open to the Court to allow disclosure, if in its opinion such disclosure is in the interest of child welfare and is not likely to affect adversely the interest of the child concerned. The Court has to give its reasons in writing whenever it permits such disclosure. Section 24 lays down that the provisions of the Criminal Procedure Code, shall govern all proceedings under the Act, subject to the special provisions of the Act or rules made thereunder. (c) Section 40 empowers a Police Officer or other duly authorised person to bring before a Juvenile Court established for the area or a Magistrate empowered under section 8 or where there is no such Court or Magistrate, before any other Magistrate, a child who has no home or is destitute, etc. Section 41 provides that when any Magistrate not empowered to exercise the powers of a Juvenile Court is of the opinion that a person brought before him is a child, he shall record such opinion and submit the proceedings and forward the child to the nearest Juvenile Court having jurisdiction in the case, and if there is no such Court, to the Sessions Judge to whom he is subordinate. Section 45 enables the Court to commit the child to a Certified School or to the care of Fit Person in cases falling under Section 40. (d) Part VI of the Act provides for punishment for special offences in respect of child. Section 63 makes all offences under this part cognizable. (e) Special attention is invited to Section 68 of the Act. It lays down that no youthful offender shall be sentenced to death or imprisonment. It further enables the Court to order the offender to be kept in safe custody where in its opinion no punishment, which under the provisions of the Act, it is authorised to inflict, is sufficient or where it is satisfied that the child is of so surely or of so depraved a character that he cannot be committed to a Certified School or detained in a place of safety and in the meantime to report the case for the orders of Government. The provisions of Section 69 are very important. They provide that the words "conviction" and "sentence" shall cease to be used in relation to children dealt with under the Act. The Court shall only record a finding that the child is either guilty or not guilty of the offence charged. Section 70 lays down that no proceedings under Chapter VIII of the Criminal Procedure Code, shall be taken against any child. Under section 71 the period of detention of a child in a certified School or a fit person institution shall not exceed five years in which the child attains the age of 18 years. It is, however, open to the Court, for reasons to be recorded in writing, to prescribe a shorter period in exceptional cases. Section 89 prescribes that in the case of a person under 15 years of age, the period of detention shall ordinarily be such as will result in the person being detained until he reaches the age of 18 years. If the person is over 15 years of age, such period of detention shall not be less than two years, unless the Court directs otherwise in special circumstances. Section 72 prescribes other orders which the Court may pass against the child. It can discharge him after due admonition. It can order the offender to pay a fine if he is over 14 years of age, or it can release the child on probation of good conduct and commit him to the care of the parent or guardian on a bond with or without surety. should be produced before the Presiding Officer and the Presiding Officer should pass s ch order only after proper inquiry and on p oper reasons. It is desirable that the Presiding Officer should avoid indiscriminate bailing out of the children, and at the same time, he should make proper inquiry into each and every case regarding the antecedents of the child and the circumstances pertaining to the child before detaining him or extending the period of his detention in the remand home, pending the disposal of his case. The question of retaining the child or extending the period of his detention in the remand home should be decided by the Presiding Officer of the Court dealing with juvenile offenders only after making proper inquiry on the basis of the r ports of the child. In case, the Probation Officer fails to make adequate reports to the Presiding Officer at p oper time or does not make proper inquiry in the case of any c'hild or is guilty of delay in making such inquiry, such instances should be immediately rr ported to the District and Sessions Judge by the Presiding Officers in the Districts and to th Chief and Sessions Judge by the Metropolitan Magistrate, by the Metropolitan Magistrate as the ca^e may be. (Vide Circular No. A.0738-62-dated 30-9-1967).