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Posted October 16, 2013 by advocateguru in Learning Centre
 
 

Infancy

 

Section 82 and 83, IPC confer immunity from criminal liability on child offenders. This principle is based on the principle of juvenile justice.

Essential Ingredients

The following are the essential ingredients of sections 82 and 83.

Act of Child under Seven Years of Age

Section 82 presumes that a child below seven years is doli incapax i.e. he is incapable of committing a crime and cannot be guilty of any offence. It presumes that he cannot distinguish right from wrong. This presumption is conclusive. It cannot be rebutted by adding evidence that the child had the capacity of understanding the consequence of his act. Even though there may be the clearest evidence that the child caused an actus reus with mens rea , he cannot be held guilty once it appears that he, at the time he committed the act, was below seven years. Section 82 totally absolves a child below seven years of age from criminal liability.

Act of a Child above Seven but Below 12 Years of Age

Section 83 presumes that a child above 7 but below 12 years of age is doli capax, i.e capable of committing a crime depending upon his maturity of understanding. But this presumption is rebuttable. It can be rebutted by proof of ‘mischievous discretion’ of the child. The prosecution is required to prove beyond reasonable doubt that the child caused an actus reus with mens rea and that he knew that his conduct was not merely mischievous but ‘wrong’. Liability of such a child depends upon his maturity of understanding of the nature and consequence of his conduct and not on his age. The presumption of innocence of a child is based on the principle of immaturity of intellect. ‘The younger the child in age, the lesser the possibility of being corrupt’, seems to be its premise. This is to say, ‘malice makes up for age, i.e. quia militia supplet aetatem. Hence, as age advances, the maxim loses force.

Maturity of Understanding

Section 83 states that when a child accused of an offence is above seven and under 12 years, the court has to ascertain if the child has sufficient maturity of understanding, so as to understand the nature and consequences of his conduct. The words ‘consequences of his conduct do not mean penal consequences but the natural consequences which result from his act. Before convicting a child who is over 7 years but less than 12 years of age, a judge is required to first conduct an enquiry and gives a finding of fact as to whether the child had attained sufficient understanding to judge the nature of consequences of his act.

Arrest of a Juvenile Offender

As section 82 exempts a child under seven years of age from any criminal liability, it is illegal for the police officer to arrest a boy under seven years of age. Now, as per section 12 of the Juvenile Justice Act, any juvenile accused of a bailable or non bailable offence, unless his release is likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger, is to be released on bail with or without surety. He cannot be put in a police station or jail.

 


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