No First Information Report (FIR) will be registered against the children in conflict with the law in J&K, except where a “heinous offence is alleged to have been committed by the child or when such offence is alleged to have been committed jointly with adults.”
In all other matters, the Special Juvenile Police Unit (SJPU) or the Child Welfare Police Officer (CWPO) will record the information regarding the “offence alleged to have been committed by the child in the general daily diary followed by a social background report of the child and circumstances under which the child was apprehended, wherever applicable and forward it to the Juvenile Justice Board (JJB) before the first hearing.”
These provisions form part of “The Jammu & Kashmir Juvenile Justice Care and Protection of Children) Rules- 2021”, notified by the UT administration.
Rules clearly specify that the police officer apprehending a child, alleged to be in conflict with law, will not send him or her “to a police lock-up and not delay the child being transferred to the Child Welfare Police Officer from the nearest police station.”
The child cannot be hand-cuffed, chained or otherwise fettered. The police officer cannot use any coercion or force on the child and will have to inform the child promptly and directly of the charges levelled against him or her through his or her parent or guardian.
As per a notification issued by the Social Welfare Department secretary Sheetal Nanda, these rules will come into force on the date of their publication in the official gazette.
Rules stipulate that there will be one or more Juvenile Justice Boards (JJBs) and Child Welfare Committees (CWCs) in each district to be constituted by the government of Jammu and Kashmir through a notification in the official gazette.
Juvenile justice Board will consist of a Metropolitan Magistrate or a Judicial Magistrate of First Class having at least three years experience to be designated as the Principal Magistrate of the Board and two social worker members, of whom one will be a woman, forming a Bench.
With regard to procedure in relation to children in conflict with law vis-a-vis pre-production action of police and other agencies, the Rules provide that the power to apprehend (the children) will only be exercised with regard to heinous offences, unless it “is in the best interest of the child.”
For all other cases involving petty and serious offences and cases where apprehending the child is not necessary in the interest of the child, the police or SJPU or CWPO will forward the information regarding the nature of offence alleged to be committed by the child along with his social background report to the Board. He will intimate the parents or guardian of the child as to when the child is to be produced for hearing before the Board.
“When a child alleged to be in conflict with law is apprehended by the police, the police officer concerned shall place the child under the charge of the Special Juvenile Police Unit or the Child Welfare Police Officer. The latter (CWPO) shall immediately inform the parents or guardian of the child that the child has been apprehended along with the address of the Board where the child will be produced and the date and time when the parents or guardian need to be present before the Board,” the Rules specify.
He will also immediately inform the Probation Officer concerned that the child has been apprehended so as to enable him to obtain information regarding social background of the child and other material circumstances likely to be of assistance to the Board for conducting the inquiry. Besides, a Child Welfare Officer or a case worker will be informed to accompany the SJPU or CWPO while producing the child before the Board within twenty-four hours of his or her apprehension.
“If a First Information Report is registered, a copy of the same shall be made available to the child or a copy of the police report shall be given to the parent or guardian,” it has been specified.
Police cannot compel the child to confess his or her guilt and he or she will be “interviewed only at the Special Juvenile Police Unit or at child-friendly premises or at a child-friendly corner in the police station, which does not give the feel of a police station or of being under custodial interrogation.” The parent or a guardian may be present during the interview of the child by the police. The police officer also cannot ask the child to sign any statement. He (police officer) will inform the District Legal Services Authority for providing free legal aid to the child. CWPO will be in plain clothes and not in uniform.
During the hearing, the Juvenile Justice Board will ensure that no person “un-connected with the case remains present in the room when the case is in progress.” It will have to ensure that only those persons, in the presence of whom the child feels comfortable, are allowed to remain present during the sitting. Sittings will be held in child-friendly premises which should not look like a courtroom in any manner and the sitting arrangement should be such to enable the Board to interact with the child face to face.
“While communicating with the child, the Board shall use child friendly techniques through its conduct and shall adopt a child friendly attitude with regard to body language, facial expression, eye contact, intonation and volume of voice while addressing the child. It (Board) shall not sit on a raised platform and there shall be no barriers such as witness boxes or bars between the Board and the child,” Rules stipulate.
The Board will sit on all working days for a minimum of six hours commensurate with the working hours of a Magistrate Court, unless the case pendency is less in a particular district and the Government of Jammu and Kashmir issues an order in this regard, or the Government of Jammu and Kashmir may, by notification in the Official Gazette constitute more than one Board in a district after giving due consideration to the pendency of the cases, area or terrain of the district, population density or any other consideration.
When the Board is not sitting, a child in conflict with law may be produced before an individual member of the Board, who will always be available or accessible to take cognizance of any matter of emergency.
Nanda notified that the central government or the Government of Jammu and Kashmir may develop appropriate “Standard Operating Procedures for the manner of inquiry in cases of missing children to give effect to these rules.”
“Any officer, institution, statutory body etc., who or which fails to comply with the provisions of the Act and the Rules framed there under, the Government of Jammu and Kashmir may take action against such officer or institution, statutory body etc. after due inquiry and simultaneously make alternative arrangements for discharge of functions for effective implementation of the Act,” Nanda stated.
With the notification of these Rules, the Juvenile Justice (Care and Protection of Children) Rules, 2013 notified vide SRO 76 dated March 24, 2014 under “The Juvenile Justice (Care and Protection of Children) Act 2013 issued by erstwhile State of Jammu and Kashmir stand already repealed by virtue of Jammu and Kashmir Reorganization Act, 2019.
“Any action taken or order issued under the provisions of the Rules of 2013 prior to the notification of these rules shall, in so far it is not inconsistent with the provisions of these rules, be deemed to have been taken or issued under the provisions of these rules,” Nanda specified.
Meanwhile, after notifying the Rules, the J&K government also accorded sanction to the extension of members of (existing) Juvenile Justice Boards and chairpersons of members of Child Welfare Committees, for a period of two months only with immediate effect or till the fresh recruitment is made.