How Will the Law Treat a Crime Committed by a Child?

The authorities are confused about how to treat the case given the age of the alleged perpetrator.

Image used for representational purposes.

(Photo: The Quint)

The shocking news that a four-and-a-half-year-old boy allegedly sexually assaulted a 4-year-old girl in a Delhi school has been difficult to absorb and understand, not just in terms of what prompted the boy to do what he did, but also in terms of how this needs to be dealt with.

Media coverage of the incident has been confusing; Initial reports indicated that the boy has been booked by the police for rape and/or offences under the Protection of Children from Sexual Offences Act 2012 (POCSO), but The Quint has accessed a copy of the FIR and has found this was not true. There also remains a great deal of confusion over how to proceed with the case, since the alleged perpetrator is so young.

Here a quick guide to what the law has to say about the tricky questions this case has thrown up.

Can the boy named by the victim’s mother be charged with a crime in this case?

As the boy is under the age of 7, he cannot be charged with a crime, no matter how strong the case against him. Under section 82 of the Indian Penal Code 1860 (IPC), a child under the age of 7 cannot be said to have committed an offence. While POCSO does not include such a provision, the IPC immunity would apply for any POCSO offences as well.

Why can’t children under the age of 7 be charged with crimes? Can children never be charged with crimes?

Liability for a crime involves not just an act or omission (known as actus reus) but also the mental intention to do so (known as mens rea). For the mens rea to exist, a person needs to have the mental capacity to understand the consequences of what they’ve done. The law imposes an iron-clad presumption that children below the age of 7 do not have this mental capacity – that they are doli incapax.

Children between the ages of 7-12 are also presumed to be incapable of committing crimes, but this is a rebuttable presumption. This means that a child between 7-12 can be found to have committed a crime, if it is proved that the child had the maturity to understand the consequences of their actions.

Children above the age of 12 are considered capable of committing crimes, though till they reach the age of 18, they are considered juveniles under the Juvenile Justice Act 2015, which generally means that the maximum time they can be sent to prison for is 3 years. However, if they are between 16-18, and are found to be mature enough, they can be tried as adults.

If the accused is a child below 7 years, can there even be an FIR in this case?

Even though the alleged assaulter here is less than 7 years old, this does not mean that what happened to the victim wasn’t rape under the IPC or penetrative sexual assault under POCSO. The boy can’t be held guilty of committing an offence, but the victim has still suffered a crime.

An FIR is merely a record of information that a cognisable offence has taken place, and does not require the identification of the perpetrator of the crime. Yes, FIRs normally are registered against a particular person, but this is not essential, especially if additional angles need to be probed. In this case, the FIR leaves the space to mention particulars of the accused blank, which gives the police scope to investigate whether anyone apart from the boy has responsibility or culpability.

What kind of evidence would be relevant to prosecuting a case like this?

The Supreme Court recently heard a case where a rape victim could not give testimony herself because she was mute and mentally challenged. The Court still upheld the conviction of the rapist based on the testimony of her mother, corroborated by strong circumstantial evidence including testimonies of witnesses that the accused and the victim were seen together before and after the time of the alleged offence, and the medical evidence of rape.

In this case, the girl seems to be capable of telling her version of the event, so it should be possible to record her statement in whatever form is necessary to make it admissible evidence. In addition, the CCTV footage and the medical reports about her condition (physiological and psychological) will be admissible and relevant – though of course this requires making out an offence against someone other than the boy.

Can the parents of the boy be charged with a criminal offence here?

There is no basic rule that the parents of a child are criminally responsible for the child’s actions. For the boy’s parents to be held responsible, some additional link between them and the assault on the girl would need to be established, for instance abetment, or common intention. However, these require very specific conditions to be met, such as instigation of the child and an awareness of the boy’s attempt to do (allegedly) something to the victim – which is not borne out by the facts available at present.

The only criminal offence that springs to mind in relation to the parents is under section 21 of POCSO – which criminalises failure to report a POCSO offence that one is aware of. This would require the parents of the boy to have known of what he allegedly did to the victim, which has not been confirmed at this point of time.

Can the school be charged with a criminal offence here?

Just because an offence takes place on a school’s premises does not mean that they will be criminally responsible for it. If it can be shown that the school in some way abetted the crime, then yes, they will be criminally responsible. However, if there isn’t some specific thing which the school has done which ties them to the offence, it is difficult to see how they could be criminally liable.

The mother of the victim has asked for a case under section 26 of POCSO to be registered against the school, which is misleading because section 26 doesn’t describe any offence – instead she probably means section 21 of POCSO – which the FIR already notes as a provision which has been violated. As with the parents of the boy, if the school was aware of the incident but didn’t record or report it, then yes, they would be criminally liable.

Can the boy be apprehended as a juvenile delinquent, or taken away to a welfare home?

The Quint has been informed by Shibesh Singh, DCP South West, that “several agencies like National Commission for Women and Children, Child Welfare Committee, Education Department are involved in [the] probe.” This raises interesting questions as to what will become of the boy. He cannot obviously be arrested by the police and cannot be apprehended under the Juvenile Justice Act either, since he cannot be held responsible for his alleged assault on the victim.

However, this does not mean that he may not be affected.

Under the Juvenile Justice Act, the Child Welfare Committee has fairly wide powers to act in the best interests of a child, and if the investigations into this case indicate that the boy has been exposed to an environment that encouraged him to do what he did to his classmate, that could constitute strong grounds to remove him from his current set-up, including taking him from the custody of his parents.

If a criminal case cannot be brought against the boy, his parents or the school, does that mean there are no consequences for anyone for what happened?

While criminal liability is tougher to establish, it may be easier to get some redressal in a civil action. The parents of the victim could reasonably argue that the school was negligent towards their daughter, and sue them in civil court on this basis. The school does have a duty of care towards its students, and should be doing its utmost to keep them safe, whether by installing CCTV cameras, ensuring that students are accompanied to the bathroom by minders, and so on.

Yes, such an incident may have been difficult to foresee, but the alleged assaults in the classroom and the bathroom should never have happened, as an adult should have been present to watch over the children, especially given their age. It appears that the school did have appropriate CCTV coverage, but questions remain as to why there were no minders or teachers to watch over the children. We do not have all the facts at this point, but it is not unreasonable to see that there would be grounds to question the school in a civil action.