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This article is authored by Nidhi Bajaj, of Guru Nanak Dev University, Punjab. In this article, the author has provided a comprehensive outline of the doctrine of doli incapax. 

This article has been published by Sneha Mahawar.

Introduction

“The younger the child in age, the lesser the probability of being corrupt.”

Doli incapax literally means ‘incapable of wrong’. It is a principle that deals with the protection of children from criminal liability. It is presumed in law that a child below 7 years of age(in the case of India) is incapable of knowing the consequences of his actions and hence is granted complete immunity from criminal liability. In this article, the author will talk about the doctrine of doli incapax in detail including the legal provisions dealing with it under the Indian Penal Code, 1860.

Meaning and basis

Doli incapax is a Latin legal maxim meaning ‘incapable of doing any harm or incapable of committing a crime’. It is a presumption that a child is incapable of forming the necessary criminal intent for committing an offence.

The maxim is based on the following reasoning/principles:

  1. A person is to be held criminally responsible only for those acts that he intends to commit.
  2. A child below the age of 7 years does not have sufficient mental understanding to know the consequences of his actions and therefore lacks the criminal intention/mens rea required to hold a person guilty of an offence.
  3. A child has to be protected from the rigours of the law at his tender age.

Legal provisions under the Indian Penal Code, 1860

Section 82: Absolute immunity

Section 82 of the Indian Penal Code, 1860 under Chapter IV relating to ‘General Exceptions’ provides that any act of a child under 7 years of age is not an offence, “Nothing is an offence which is done by a child under 7 years of age”. Thus, no child under 7 years of age can be held criminally responsible. As the child below such an age is incapable of distinguishing between right and wrong, the law confers absolute immunity from criminal prosecution, trial and conviction to such child. While explaining the reason for exempting infants from criminal liability, Blackstone has said that infancy is a defect of understanding and therefore, the infants under the age of discretion should not be punished. However, it is pertinent to note that the age of discretion varies from country to country. Section 82 has a wide scope and the protection provided to infants extends not only to offences under the I.P.C. but under local and special laws as well.

Section 83: Qualified or partial immunity

Section 83 of the I.P.C. provides partial immunity from criminal liability to a child who is above 7 and under 12 years of age. It provides that: Nothing is an offence which is done by a child above 7 years of age and under 12, who has not attained sufficient maturity of understanding to judge the nature and consequences of his conduct on that occasion.

Ingredients of Section 83

  1. The act is committed by the child.
  2. The child is above 7 years of age and below 12 years of age.
  3. The child has not attained sufficient maturity of understanding to judge the nature and consequences of his conduct on that occasion.

This means that a child between 7 to 12 years of age will be absolved from criminal liability only if it can be proved that on the date of commission of the offence, the child had not attained sufficient maturity of understanding to judge the nature and consequences of his conduct. To find out as to whether the child has attained sufficient maturity of understanding, the nature of the act, the conduct of the child before and after the act, his behaviour, and conduct in court are relevant considerations.

Example: A, a child aged 10 years goes to his friend B’s house and picks up his mother’s silver bracelet worth Rs. 1000 which was lying on the table and immediately sold it for Rs. 500 and misappropriated the said money. The conduct of A shows that he was sufficiently mature to understand the nature and consequences of his actions and therefore was guilty of theft under Section 378 of I.P.C.

Case Laws

Hiralal Mallick v. State of Bihar (1977)

Facts of the case

In this case, Hiralal Mallick, a 12-year-old boy along with his two elder brothers was charged with the homicide of one Arjan Mallick and the three were convicted under Section 302 read with Section 34 of I.P.C. The appellant had inflicted cuts on the neck of the deceased with a sharp weapon in an act of revenge and then had run away like the rest. In appeal, the High Court directed the conversion of conviction under Section 302 into one under Section 326 read with Section 34 I.P.C. Considering that on the date of commission of a crime, the appellant was of 12 years of age, the Court took a compassionate view and reduced his sentence to 4 years of rigorous imprisonment. An appeal by special leave was preferred by the appellant from the order and judgement of the High Court.

The decision of the Supreme Court

The Hon’ble Court dismissed the appeal and upheld the conviction of the appellant. It was held that the prima facie inference that the appellant had the intent to endanger the life of the deceased stands unrebutted. Moreover, no evidence was shown addressing the age of the appellant or his lack of sufficient maturity at the time of the commission of the offence. The Court held that where a crime is committed by the concerted action of a group of persons, the degree of criminality may vary depending not only on the injurious sequel but also on the part played and the circumstances existing at that time. In such a case, a personalised approach has to be taken with regard to each participant in the act regarding the circumstance of involvement, his doli capax, age and expectation of consequences. 

Kakoo v. The State of Himachal Pradesh (1976) SC

In this case, the accused Kakoo, aged 13 years was convicted for committing rape of a minor child of 2 years. He was sentenced to 4 years of rigorous imprisonment by the High Court of Himachal Pradesh. A leave by Special leave was preferred under Article 136 of the Constitution of India. It was argued before the court that at the time of the commission of a crime, the accused was merely 13 years of age and hence the best way to reform him would be to put him in the care of his father subject to execution of a bond by the father for the good behaviour of his son. The court while referring to Section 82, Section 83 of the I.P.C. and the need to treat juvenile offenders with a humanitarian approach reduced the sentence of the appellant to one year rigorous imprisonment and a fine of Rs. 2000.

Ulla Mahapatra v. The King (1950) Orissa HC

In this case, the appellant Ulla Mahapatra, a child of 11 years of age advanced towards the deceased holding a knife in his hand with a threatening gesture saying that he would cut him into pieces and thereafter struck him on the neck due to which the deceased died on the spot. He was convicted under Section 302 I.P.C. and was sentenced to transportation. In appeal, the Orissa High Court held him guilty of an offence under Section 302 I.P.C. and ordered that the accused be sent to a reformatory school for 5 years instead of sentencing him to transportation.

Shyam Bahadur Koeri v. State of Bihar (1967) Patna HC

In this case, a child aged below 7 years found a gold plate and did not report this fact to the Collector. After getting knowledge of the aforesaid fact, the Collector ordered the prosecution of the child under the Indian Treasure Trove Act, 1878. The Court held that the child being under 7 years of age is doli incapax and thus entitled to benefit of Section 82 of I.P.C. and ordered his acquittal.

International perspective and the Juvenile Justice (Care and Protection of Children) Act, 2015

United Nations Convention on Rights of the Child (UNCRC) 

Article 40(3)(a) of the United Nations Convention on Rights of the Child(UNCRC) provides that the state parties shall establish a minimum age below which children shall be presumed not to have the capacity to infringe the penal law. It also provides that the states shall seek to promote the establishment of laws, procedures and institutions which shall specifically apply to those children who are accused of any offence including measures for dealing with such children without resorting to judicial proceedings. 

Minimum age of criminal responsibility

The Committee on the Rights of the Child has recommended that the state parties should set at least 12 years as the absolute minimum age of criminal responsibility and to continue to increase it to a higher age level.

General Comment No. 24 states that over 50 state parties have raised the minimum age following the ratification of the UNCRC, with 14 being the most common minimum age of criminal responsibility internationally.

Minimum age of criminal responsibility in different jurisdictions

10 yearsEngland, Wales, Northern Ireland
12 yearsCanada, Netherlands, Republic of Ireland
13 yearsFrance, Poland
14 yearsAustria, Germany, Italy
15 yearsDenmark, Finland, Sweden
16 yearsPortugal
18 yearsBelgium

Juvenile Justice (Care and Protection of Children) Act, 2015

The Juvenile Justice (Care and Protection of Children) Act, 2015 provides a child-friendly approach for dealing with child and juvenile offenders/accused i.e. adjudication and disposal of matters keeping in mind the best interests of children and also provides for their rehabilitation. The Act defines a child and a juvenile as someone who has not completed the age of 18 years. It deals with:

  1. Child in conflict with the law- A child who is alleged or is found to have committed an offence and who has not completed 18 years of age on the date of commission of the offence.
  2. Child in need of care and protection-This includes children without any home, children found working in contravention of labour laws, mentally ill or physically challenged children or abandoned children etc.

Section 3(i) of the Act provides for the principle of presumption of innocence to be followed in the administration of the Act which lays down that, “Any child shall be presumed to be innocent of any malafide or criminal intent up to the age of 18 years”. 

Also, the Act under Chapter IV comprehensively deals with the procedure in relation to children in conflict with the law. Special procedure is provided for dealing with children who are accused of a criminal act in that the child cannot be placed in a police lock-up or lodged in jail and the person in whose charge a child in conflict with law is placed shall undertake the responsibility of a child as a parent.

However, Section 15 of the Act provides for circumstances where a juvenile may be tried as an adult which are as follows:

  1. Age of child: The child has completed 16 years of age or is above 16 years of age.
  2. In case of heinous offence: The child is alleged to have committed a heinous offence i.e. an offence punishable with minimum imprisonment of 7 years or more.
  3. A preliminary assessment by Board: A preliminary assessment shall be conducted by the Board with regard to the children-
  1. Child’s mental and physical capacity to commit the crime,
  2. His ability to understand the consequences of the offence, and
  3. The circumstances in which the offence was allegedly committed by him.
  1. The assistance of experts: The Board is empowered to take the assistance of experienced psychologists, or psycho-social workers, or other experts for the purpose of conducting such assessment as aforesaid.
  2. Matter to be disposed of by Board: If the Board is satisfied on such preliminary assessment that the matter should be disposed of by the Board, then the Board shall follow the procedure laid down for trial in summons case under the Code of Criminal Procedure, 1973.
  3. Trial as an adult: Section 18(3) provides that if the Board is satisfied after the preliminary assessment that there is a need to try such a child as an adult, it may order the transfer of the trial of the case to the Children’s Court having jurisdiction to try such offences.

Conclusion

Section 50 of the UK’s Children and Young Persons Act, 1933 provides that no child under the age of 10 years can be guilty of any offence. However, the rebuttable presumption that a child over 10 years of age is doli incapax was abolished by Section 34 of the Crime and Disorder Act, 1998 in England and Wales.

Whereas in Australia, the minimum age of criminal responsibility below which a child is deemed incapable of committing a crime is 10 years and the rebuttable presumption of doli incapax applies to all children aged 10 to 14 years at the time an alleged offence is committed.

While there might be discussions and criticism surrounding the inability to come up with a fixed age up to which a child should be considered as doli incapax, still the importance of the doctrine of doli incapax cannot be ignored for a split second as it constitutes a crucial measure for protecting young children from the strict penalties under law. While drafting penal laws, specifically those dealing with children, it has to be always kept in mind that a child below a certain age is incapable to understand what is right and wrong and that children have to be treated with care and compassion with a reformatory approach and the strict rigours of law cannot and should not be used against children.

References


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