Nothing is an offence which is done by a child above seven years of age and under twelve years of age, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion.
Understanding the Section
Section 21 of the Bharatiya Nyaya Sanhita addresses the criminal liability of children of 7 to 12 years old. The law acknowledges that the children in this age group may not have acquired full maturity to understand the nature and consequences of their actions, and thus provide them special protection under criminal law.
Legal Principle
The basic principle is: A child above seven but below twelve years cannot be held guilty if he/she lacks sufficient maturity of understanding to judge the nature and consequences of his/her conduct.
This means that the child’s mental capability at the time of the act is the important factor. If the child did not understand what he/she was doing was wrong (or criminal), then the child is not criminally liable.
Essential Elements
For this section to apply, the following factors are considered:
- Age of the child – The child must be more than 7 but less than 12 years of age.
- Immature appreciation – The child must not possess sufficient maturity to understand what they did and its consequences.
- Assessment is circumstantial – The court considers the child’s mental development, behavior, intelligence, and the context of the act.
If the court determines that the child possessed sufficient maturity to understand the act, protection under s 21 is not available.
Rationale of the provision
This is based on the doctrine of doli incapax or “incapacity for crime.”
- Children less than 7 years are absolutely protected against criminal responsibility.
- Children 7–12 years are provided conditional protection based on their maturity.
The rationale is that children do not all have the same mental development; that is, not all children understand the seriousness of their conduct.
Illustrations
- Child A, a 9-year-old, accidentally breaks the neighbor’s window while playing and does not contemplate the possibility of harm or damage. He will not be held criminally responsible because he lacked a mature awareness.
- Child B, an 11-year-old, thinks carefully about and steals money from the envelope in his teacher’s purse and hides the money. If the court concludes that B understood that stealing was wrong, he would not have protection under Section 21.
Section 21 BNS grants conditional immunity for children between the ages of 7-12, depending on their maturity level. The maturity of the child at the time of the act is what determines if the child has a conditional immunity. Children should be treated fairly within the criminal justice system and not be punished as adults when they may not understand what they are doing.
Case Law
Ulla Mahapatra v. Emperor (1909) ILR 36 Cal 62
Principle:
The court made an observation that mere age is not the only consideration. The intelligence, or conduct, and the knowledge of circumstances must all be considered in determining whether or not the child understood the wrongfulness of their act.
Relevance:
This case provided that each case must be a unique evaluation as some children 10 years or older may be very mature whereas others may not be.