Chapter -4 Relating to Juvenile Justice

Matters to be considered while dispensing the juvenile justice: A person, official and Juvenile Court involved in dispensing juvenile justice shall take into account the following matters, in the course of dispensing justice, in addition to the other matters as provided elsewhere in this Act:

(a) To take opinion of a child before making a decision that affects him or her,

(b) To provide an opportunity to father, mother, other family member or guardian to put their opinion before making decision on the subject matter associated with the interests and benefits of the child,

(c) To use parlance, speak and behave according to the child’s age, level of intellectual development, conscience and cultural norms and values,

(d) To use language preferred by the child and to take assistance of an interpreter as required while talking to him or her.

To take a child under control: (1) If information on an offence is received, the investigating authority shall immediately start investigation on it. While doing such investigation, if it appears that the investigation is not possible without taking the child accused of the offence under control, the investigating authority may take him or her under control.

(2) If it appears that it is no longer required to take a child under control, who has been taken under control, pursuant to sub-section (1), he or she shall be handed over to his or her family member or guardian or the nearest relative.

(3) If a child is taken under control pursuant to sub-section (1), the investigating authority shall give information about it to his or her family member, or guardian or close relative.

(4) The investigating authority shall not use force while taking a child under control pursuant to sub-section (1).

Provided that it shall not bar the using of minimum force required to take the child under control.

(5) The child taken under control pursuant to sub-section (1) shall, if possible, be referred to a child psychologist or a person working in the field of children’s welfare in order to provide the required counselling service.

(6) If the child taken under control pursuant to sub-section (1) could deviate himself or herself pursuant to Section 27, the investigating authority may, notwithstanding anything contained in the prevailing law, take the deposition of him or her by himself or herself.

(7) The child taken under control pursuant to sub-section (1) may be kept in an observation chamber with the permission of the Juvenile Court for a maximum twenty-one days, not exceeding five days at a time.

(8) Notwithstanding anything contained in sub-section (7), if the Juvenile Court is of the opinion that it not reasonable to keep the child accused of offence in the observation chamber, having regard to the child’s physical condition, age, circumstances at the time of commission of the offence or condition of the observation chamber, the Juvenile Court may make an order to investigate the case by entrusting such a child to his or her father, mother, other family member or guardian and in their absence to any social organization working in the field of protection of the rights and interests of the child or child reform home on the condition that the child shall make presence when the Juvenile Court so requires.

(9) While inquiring into the child taken under control, the investigating authority shall make it in the presence of his or her father, mother or guardian or children welfare authority or legal practitioner in a child friendly environment.

Provision relating to establishment of observation chamber: (1) The Government of Nepal may establish an observation chamber for the purpose of keeping a child taken under control on the charge of an offence, throughout the period of investigation.

(2) A separate room shall be arranged in every District Police Office until the observation room referred to in sub-section (1) is established.

(3) The child taken under control for investigation shall be provided with counselling by a child psychologist and psycho-social support as required.

(4) If any member of a child’s family wishes to stay together with the child who is kept in the observation chamber for assistance, the investigating authority may give permission to stay together specifying the time and conditions as required.

(5) The provisions relating to the establishment, operation, management and monitoring of the observation chamber shall be as prescribed.

Special provision relating to investigation and prosecution: (1) Notwithstanding anything contained in the prevailing laws, the Government of Nepal shall form a separate unit in order to investigate into the cases of offences of which children are accused.

(2) The Government of Nepal may designate an official working at the District Police Office, who has got training on juvenile justice, to perform that function until the separate unit is formed pursuant to sub-section (1).

Provision relating to trial: (1) No child shall be detained in the course of trial and no bail or guarantee shall be demanded from him or her.

(2) Notwithstanding anything contained in sub-section (1), the Juvenile Court may, for reasons to be recorded, send a child accused of an offence to the child reform home during trial, in any of the following circumstances:

(a) If there is adequate ground that the child’s life would be in danger, someone would get hurt from him or her, such a child would go away or any other reason that it is not appropriate to put him or her elsewhere,

(b) If it appears from the evidence available for the time being that a child accused of an offence punishable by imprisonment for a term not exceeding three years or more or there is a reasonable ground to believe that he or she is an offender.

(3) Except in the circumstance referred to in sub-section (2), other child accused of offence may be entrusted to his or her father, mother, other family member or guardian, and in their absence to an institution or person working for the welfare of the children on a condition that the child will be presented as and when needed.

Provided that if the Juvenile Court deems that it is not appropriate to keep the child in the reform home, taking into account the child’s physical condition, age, circumstances at the time of commission of the offence as mentioned in sub-section (2), it shall not bar the entrusting of such a child to his or her father, mother, other family member or guardian, and in their absence, to an institution or person protecting the rights and interests of the child, by specifying the conditions pursuant to this sub-section.

(4) While entrusting a responsibility of a child pursuant to sub-section (3), that person and the child shall be informed about the specified conditions and the consequences that must be borne if they have not been followed.

(5) If the child who is entrusted to someone pursuant to sub-section (3) does not follow the conditions specified by the juvenile court, the trial of the case may be made by keeping him or her in the child reform home.

Rights of child victim: A child victim shall have the right to child friendly justice as follows in every stage of investigation, prosecution and judicial process:

(a) To get information on the language he or she understands,

(b) To participate or be involved,

(d) To get recovery of the reasonable compensation from the offender,

Provided that this clause shall not be considered as limiting the opportunity of the victim to receive compensation from the State.

(e) To get free legal aid and socio-psychological counselling service as required and to appoint a separate legal counsel if he or she so wishes,

(f) To get free service of the translator, sign language expert or interpreter if the victim does not understand the language used by the investigating authority or Juvenile Court,

(g) To get, free of cost, the copy of the documents including the decisions and orders made by the investigating authority or Juvenile Court,

(h) To get police protection for safety against the probable threat that may be caused from the offender or his or her party,

(i) To have his or her case heard in camera,

(j) To have the indirect presence of the defendant in the course of hearing of the case as required.

Rights available to child in the course of hearing: (1) A child accused of an offence shall have the following rights, in addition to the rights mentioned in the prevailing law and elsewhere in this Act, in the course of investigation and hearing of the case:

(a) Right to obtain information on the charge made against him or her, its proceeding, order issued or decision made on it directly or through his or her family or guardian,

(b) Right to receive free legal aid and other necessary support immediately in order to defend against the charge made against him or her,

(d) Right to demand the presence of family or guardian required in all processes of juvenile justice delivery,

(e) Right to receive prompt and fair justice from the Juvenile Court,

(f) Right to have confidentiality in the process of juvenile justice delivery

(g) Right to get information on the constitutional or legal rights,

(h) Right to have investigation, prosecution and hearing in the child friendly environment,

Explanation: For the purposes of this clause, “child friendly environment” means the treatment done with the child that is commensurate to the age, maturity and psychology of the child, this term also includes the use of the language understood by the child, creation of the fearless atmosphere, presence of his or her mother, father or other family member or guardian, addressing the personal needs of the child and the availability of the facilitator as required.

(i) Right to have an opportunity to participate in every stage of judicial proceedings and to put his or her own views independently,

(j) Right to allow the participation of the parents, guardian of the child, during the hearing of the case, if he or she so wishes,

(k) Right to stay separately from the offender, if the child so wishes where the father, mother, parents or guardian of the victim child is the perpetrator.

(2) The child accused of an offence shall be presumed to be innocent unless decided otherwise by the Juvenile Court, and such child shall not be compelled to give testimony against him or herself.

To divert: (1) Notwithstanding anything contained in the prevailing laws, the following authorities may, in the following circumstances, take decision to divert a child accused of an offence, if it appears reasonable to divert the child for his or her best interests:

(a) The investigating authority, where the claimed amount is upto five thousand rupees or the offence t is punishable by a fine of upto two thousand rupees or imprisonment for a term of upto two months,

(b) The government attorney, where the claimed amount is upto ten thousand rupees or the offence is punishable by a fine of upto five thousand rupees or imprisonment for a term of upto three years,

(2) Notwithstanding anything contained in clause (c) of sub-section (1), a child shall not be diverted in a case punishable by imprisonment for a term of three years or more than three years shall not be diverted.

(3) The child or guardian may, if not satisfied with the order of diversion, file a petition in the Juvenile Court in the case of clauses (a) and (b) of sub-section (1) and in the High Court in the case of clause (c).

Matters to be considered in making diversion: The following matters shall be considered while making diversion:

(a) Confession of offence by the child,

(b) Consent of the concerned child, his or her father, mother and other family member, or guardian where there are no parents,

(d) Nature of the offence and circumstances of its commission, gravity of the event, age, maturity and intellectual level, family environment of the child and the damage caused to the victim and his or her rehabilitation are to be considered.

Procedures to be followed while making diversion: (1) One or more of the following appropriate procedures shall be followed while diverting a child, also having regard to his or her desire:

(a) To have reconciliation or understanding between the child and the victim,

(b) To make the child realize the mistake,

(d) To send the child to any community service,

(e) To send the child to any institution for his care and protection,

(f) To release the child on supervision and direction of the child welfare authority,

(g) To entrust the child to his or her father, mother or other family member or guardian,

(h) To make the child participate in any training or educational program.

(2) While diverting a child by adopting any procedure referred to in clauses (d), (e), (f), (g) and (h) of sub-section (1), the period shall also be fixed.

(3) While diverting a child by adopting the procedure referred to in clauses (d), (e), and (f) of sub-section (1), no diversion shall be made so that it exceeds the maximum term of punishment imposable for the commission of the offence.

(4) The investigating authority or government attorney shall, before diverting a child, obtain a report on study and analysis of physical and mental condition of the child by the child psychologist and child expert and economic, cultural condition and circumstances of the child by the social worker.

(5) The investigating authority, government attorney or Juvenile Court shall give the information about the diversion of the child pursuant to sub-section (1) to their respective higher office and Juvenile Court.

(6) If the child accused of an offence is diverted, such a dispute shall terminate, and its formal judicial proceeding shall be deemed to be concluded.

(7) The investigating authority, government attorney or Juvenile Court that has made diversion shall make arrangement to monitor, whether the diverted child has been continuously participating in the diversion procedure or not, through a probation officer.

(8) The following may be done to indemnify the damage caused to the victim while diverting a child:

(a) To compensate the victim or to have recovery of the actual loss and damage,

(b) To cause the property, profit or material acquired from the offence to be returned to the concerned owner,

(9) Other provisions relating to the diversion shall be as prescribed.

Formation of the Juvenile Court: (1) The Government of Nepal may, on recommendation of the Judicial Council, form the required number of Juvenile Courts to originally proceed, try and settle the offence committed by the children.

(2) The notice of formation of the Juvenile Courts pursuant to sub-section (1) shall be published in the Nepal Gazette, and the territorial jurisdiction and venue of such Courts shall be as mentioned in the same notice.

(3) A juvenile bench shall be formed in each District Court for the proceeding, hearing and settlement of the offence to be dealt with the juvenile court until the Juvenile Court is formed under sub-section (1).

(4) The juvenile bench referred to in sub-section (1) shall consist of the following members:

(a) District Judge,

(b) Social service provider,

(5) The qualification, appointment, remuneration and other conditions of service of the social service provider, child psychologist or child specialist referred to in clauses (b) and (c) of sub-section (4) shall be as prescribed.

(6) Notwithstanding anything contained in sub-section (1), if an adult person is involved, along with the child, in any offence, the matter shall be proceeded, tried and settled by the Juvenile Court in the case of the child, and the matter shall be proceeded, tried and settled pursuant to the prevailing laws in the case of the adult person by establishing a separate case file.

Exercise of jurisdiction of the Juvenile Court: The exercise of jurisdiction of the Juvenile Court shall be made as prescribed.
Proceeding by the Juvenile Court: Even if the child attains the age of eighteen years during the proceeding of the case, such case shall be proceeded, tried and settled by the Juvenile Court itself.
Cases to be transferred to the Juvenile Court: If any child has been accused of offence before the commencement of this Act and the case is being originally tried by the District Court or other body pursuant to the prevailing laws, the case shall be transferred to the concerned Juvenile Court after the commencement of this Act.
Provision relating to trial: (1) The Juvenile Court shall try the case in a child friendly environment by taking into consideration the age and maturity of the child.

(2) The Juvenile Court shall make the child participate while trying the case and shall provide an opportunity to freely put his or her views.

Provision of in camera bench: (1) The trial and adjudication of the case against a child accused of an offence shall be carried out in camera bench except as otherwise ordered by the Juvenile Court.

(2) During the trial and adjudication of the case in-camera pursuant to sub-section (1), only the concerned child, his or her family member or guardian, victim, government attorney, concerned legal practitioner and the person permitted by the Juvenile Court may enter into the in-camera bench.

(3) The procedures of the in-camera bench shall be as prescribed.

Provisions relating to punishment: (1) If the child is less than ten years of age at the time of commission of the offence, no case and punishment of any kind shall be instituted against and imposed on him or her.

(2) If a child of ten years of age or above but below fourteen years of age commits an offence that is punishable by a fine, the child shall be released after counseling him or her and if such a child commits an offence that is punishable by imprisonment, the child shall be punished with imprisonment for upto six months or be sent to the child reform home for a period not exceeding one year without subjecting him or her to imprisonment.

(3) If a child of fourteen years of age or above but below sixteen years of age commits an offence, the child shall be punished with half the punishment that is imposable on the person having attained majority pursuant to the prevailing law.

(4) If a child of sixteen years of age or above but below eighteen years of age commits an offence, the child shall be punished with two-thirds of the punishment that is imposable on the person of legal age pursuant to the prevailing law.

(5) The Juvenile Court shall, having regard, inter alia, to the age, sex, maturity of the child who is held to be subject to punishment pursuant to sub-section (2), (3) or (4), nature of the offence and also the circumstances of the commission of the offence, postpone his or her punishment or make any of following appropriate decisions as punishment, with or without specifying the terms and conditions:

(a) To counsel or advise the child about good human behaviours by any family member or guardian,

(b) To give orientation to the child through any institution or person that provides the service,

(d) To keep the child under the observation of any family member, guardian, school, person or institution that provides service for a fixed period subject to the observance of the specified terms and conditions,

(e) To send the child for community service that is suitable to his or her age, by specifying the nature and period of service,

(f) To make the child stay in the child reform home for a period not exceeding that of the punishment imposed on him or her.

(6) If any person has caused a child to commit an offence, by teaching, giving pressure, ordering, luring or in any other manner, that person who has taught so, given pressure, ordered, lured or made to commit it shall be punished pursuant to law as if that person committed the offence on his or her own.

(7) Notwithstanding anything contained elsewhere in this Section, while punishing a child who has not completed sixteen years of age, no punishment of imprisonment shall be imposed on such a child except in cases where he or she has committed a heinous offence, grave offence or repeated the offence.

Period for disposing of the case: Notwithstanding anything contained in the prevailing laws, the Juvenile Court shall generally dispose of a case within one hundred twenty days from the date of filing of the case and the proceeding and adjudication of such a case shall be made on the basis of continuous hearing.
Reform period may be reduced or remitted: (1) If there is satisfactory improvement in the behaviour of a child kept in the child reform home or kept under the protection or supervision of any institution or person pursuant to the decision of the Juvenile Court, the child welfare authority may recommend the Juvenile Court to reduce or remit the period of reform of such a child.

(2) The Juvenile Court may reduce or remit the remaining period of reform of the child if it thinks it reasonable to reduce or remit the period of reform upon examining the recommendation received pursuant to sub-section (1).

Restorative justice: (1) While dispensing the juvenile justice, it shall be made in compliance with the principle of restorative justice.

(2) Other provisions relating to restorative justice shall be as prescribed.

Not to be considered disqualified: Notwithstanding anything contained in the prevailing laws, if any person becomes disqualified to receive any post or facility pursuant to law by the reason of the commission by him or her of any offence, he or she shall not be considered disqualified to receive that post or facility on the ground of the offence that he or she committed when he or she was a child.
Punishment not to be counted: (1) Notwithstanding anything contained in the prevailing laws, the offence committed by a person during childhood shall not be counted while counting repeated offence pursuant to this Act or the prevailing laws, for the purposes of punishment.

(2) Notwithstanding anything contained in the prevailing laws, although any child commits an offence time and again, he or she shall not be subjected to additional punishment on the basis of repetition of the commission of the offence.

Not to be handcuffed, shackled or kept in solitary confinement: Notwithstanding anything contained in the prevailing laws, no child in conflict with law shall be handcuffed, shackled or kept in solitary confinement or detention, or prison.
Provision relating to child reform home: (1) The Government of Nepal shall establish the child reform home as required for the purpose of keeping the children in conflict with law until their reform and rehabilitation.

(2) Any institution may, with the approval of the Government of Nepal, establish a child reform home, for the purpose of sub-section (1).

(3) The Juvenile Court may monitor and inspect the child reform homes established within its territorial jurisdiction, issue necessary directives to such child reform homes and order such child reform homes to submit reports on the condition of reform of the children kept in such homes.

(4) If a child kept in a child reform home attains the age of eighteen years before completion of the period for which he or she has to remain in the child reform home, he or she shall be kept separately from the other children in the child reform home for the remaining period by considering, inter alia, the improvement seen in his or her behaviour, continuity of skills and education gained.

(5) The establishment, operation, monitoring and other arrangement of the child reform home shall be as prescribed.

To shift children suffering from chronic or serious disease to another place: (1) If any child kept in a child reform home needs continuous treatment because he or she has suffered from any chronic or serious disease or if the concerned doctor has recommended to shift any child somewhere else due to his or her physical or mental disability or his or her addiction to narcotics, the Juvenile Court may issue an order to shift such a child to another place for a certain period.

(2) An institution or person who keeps the child as per the order issued pursuant to sub-section (1) shall submit a report related to the health of the child to the concerned Juvenile Court in every six months.

(3) If the child is found to be healthy or free from addiction on the basis of the report referred to in sub-section (2), the Juvenile Court may issue an order to return that child to his or her previous condition.

Psycho-sociological and psychological study report: (1) An individual psycho-sociological and psychological study report shall be prepared for the purpose of investigation, prosecution, proceeding, hearing or adjudication of the charge made against a child in conflict with law.

(2) The provisions regarding the preparation of the study report referred to in sub-section (1) shall be as prescribed.

Central Juvenile Justice Committee: (1) There shall be a Central Juvenile Justice Committee, as prescribed, at the central level for carrying out the functions, including making coordination between the various institutions working in the field related to juvenile justice.

(2) The meetings, functions, duties and powers of the Central Juvenile Justice Committee shall be as prescribed.

District Juvenile Justice Committee: (1) There shall be a District Juvenile Justice Committee in every district, and the formation, functions, duties and powers and rules of procedures of meetings of such Juvenile Justice Committee shall be as prescribed.

Chapter -4 Relating to Juvenile Justice

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