82. Act of a child under seven years of age.—Nothing is an offence which is done by a child under seven years of age.
83. Act of a child above seven and under twelve of immature understanding.—Nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge the nature and consequences of his conduct on that occasion.
The criminal law lays down various kinds of punishments for the offences committed but it is not always required that a person is penalised for a crime which he/she has committed. The Indian Penal Code,1860 recognises certain defences in Chapter lV under “General exceptions” which presumes that the person committing crime is not liable and moreover such offence is committed for a legally recognised defence, in result to which the person committing crime escapes from the criminal liability.
Indian Penal Code,1860 consists of 2 sections which talks about the Law of exemption from criminal liability in the case of minors.Section 82 affirms that nothing is an offence which is done by a child under 7 years of age and Section 83 affirms that nothing is an offence which is done by a child above 7 years and under 12 years of age, provided that such child has not procured sufficient maturity of understanding to judge the nature and consequences of his conduct.
Blackstone,defines infancy as a defect of the understanding and infants under the age of discretion ought not to be punished by any criminal prosecution whatsoever. Under these scenarios there is a presumption of law doli incapax which means that the child is incapable of committing a crime and he has no discretion of distinguishing right from wrong and criminal intention is also absent in such cases but the incapacity to commit an offence only arises when the child has not attained sufficient maturity of understanding what his actions are and what will be the result of his actions.
The two sections can be easily understood in a tabular form:
- Order must be written.
- Order can be issued without any evidence.
- Order must be specific.
- Order must contain materialistic facts.
- Order must clearly state what is prohibited.
GROUNDS FOR THE APPLICATION OF SECTION 144.
Indignation can be of any type either it can be physical or mental. There must be danger to life or health or affray or riot or breach of peace. This section should not be abused by using it for dealing with abusive articles or defamatory statements as they do not lead to breach of peace.
INJURY TO HUMAN LIFE
The magistrate is in no position to impose section 144 merely for the protection of property.The magistrate can only the jurisdiction related to the cases where there’s a risk to human life or safety.
DISTURBANCE OF PUBLIC TRANQUILITY
This section is imposed merely on the assumptions and must be made after establishing a connection of cause and effect between the act which is being prohibited and also the disturbance to public peace and harmony.
1. Radhe Das v. Jairam Mahto
This cases was related to the dispute of a property and the petitioners asked for the restrictions on the respondent to enter the property and so was granted by the magistrate and in the response of this action the respondent said that their right over a property was being violated by this action of the court. The court held that “if the situation demands any action, then for the prevention of public peace and harmony the individual rights of a person can absolutely be renounced for the greater benefit of the society at large.”
2. Acharya Jagdisharanand avadhut v. Police commissioner
This case involved the order which was imposed by the magistrate for two months and then after every two months the commissioner used to issue the same order. And in this case the repetition of such order was challenged and the court held “ the parliament never intended the life of an order under section 144 of the code to remain in force beyond two months and the magistrate doesn’t hold the power to contemplate repetitive orders and if such orders are made it would clearly result into the abuse of powers so conferred.”
Essentials of section 82 -
Section 82 states that by no means, a child below the age of 7 can be held guilty for any offence because it is assumed that he’s doli incapax and he’s not capable of differentiating what is right and what is wrong and he’s not aware of the results of his conduct which means that there is no mens rea. This section acts as a complete defence and it cannot be taken in any way and any evidence supporting the crime committed is rebutted in such cases
Essentials of section 83 -
Section 83 states that in order to hold a child liable for committing a crime it is necessary for the prosecution to prove that the element of mens rea was present along with actus reus. This section provides a partial defence from criminal liability conferred on children above the age of 7 but below the age of 12 years. It is mandatory for the prosecution to prove that the child committing the crime was aware of his acts and he knew the results of his act and the criminal liability depends upon his intention and not upon his age.
The children above 12 years committing a crime are governed by the Juvenile Justice ( Care and Protection Act,2000) and no defence is granted to the child beyond 12 years and is held guilty for the offence he has committed.
Krishna Bhagwan v. State of Bihar
In this case,the Patna High Court upheld that a child who’s accused of committing an offence has attained the age of 7 years or at the time of the decision has attained the age of 7 years during the time of the trial can be convicted if he is able to understand the nature of the offence.
Heeralal v. State of Bihar
In this case,an eleven year old child quarrelled with the deceased and threatened to cut the deceased into pieces. The child picked up the knife and actually stabbed the deceased to death. The defence under Section 83 of Indian Penal Code was pleaded. The trial court convicted the boy rejecting the defence because the child’s words, gesture, assault, keeping a knife and ultimately stabbing the deceased proved that the child had the knowledge and understanding of the consequences of his actions. The Supreme Court upheld the decision of the High Court.
Marsh v. Loader
A child was stealing a piece of wood in result to which the defendant filed a case against him,the child was discharged upon the basis of his age as he was below 7 years of age
Kakoo v. State Of Himachal Pradesh
Kakoo who was of thirteen years had committed rape on the child of 2 years and was sentenced to 4 years of rigorous imprisonment by the trial court and the decision was upheld by the High Court. The defence counsel pleaded defence under section 82 and 83 of the Indian Penal Code. This took place in 1976 when laws for juvenile and child delinquents were not fully developed and Himachal Pradesh did not have any enactment in force at the time. The court however stated, looking at the circumstances of the case. We are of the opinion that the ends of justice will be served by reducing the sentence of the appellant to one year’s rigorous imprisonment and a fine of Rupees 2,000/-, and in default of payment of fine, to suffer six months further rigorous imprisonment. The appellant shall be detained separately from adult prisoners. He should preferably be detained in a Reformatory School, if any, for the said period. The fine, if realised, shall be paid as compensation to Shrimati Parmeshwari Devi, the mother of the victim baby.”
The development index of a country depends upon the quality of the human resource and children are the future of the country and there is a greater responsibility upon the state to ensure a proper development of children and raise better individuals for the nation. It is very essential for our children to be provided with good education and the judicial system should be more careful while dealing with the cases of infants as they are of very small age and should be treated accordingly and proper measures shall be taken while measuring the capacity and understanding of the child of committing an offence.