ROUGH DRAFT

SUBMITTED TO:- SUBMITTED BY:-

Name Mr. Pratyush kaushik Name Akhil kumar Goyal

Faculty of Legal English Roll no.- 1809

B.B.A. LL.B (Hons.)

SUBJECT-Legal English

TOPIC- MILITIA SUPPLET AETATEM

 INTRODUCTION

MILITIA SUPPLET AETATEM :- It is a legal maxim which means Malice Supplements Age .It is
applicable in india under section 82 and section 83 of Indian Penal Code (IPC) . Malice or Intension is very
important for commission of an offence under IPC, The other associated words to this maxims are Doli Capax
and Doli Incapax.
DOLI CAPAX:- It is a Latin term that means capable of doing harm. Criminal Procedure (CrPC) also
provides for presumption of innocence in favor of children above 7 and under 12 years of age. In this case, if
the prosecution can procure evidence and prove contrary then even a child below 12 years (12-7yrs) can be
prosecuted. This immunity is termed by scholars as qualified immunity.

DOLI INCAPAX :- It is a Latin term that means incapable of doing harm. This term has been used to
describe a presumption of innocence for children in Criminal law in most countries.
The basis of this presumption lies in the theory of Criminal responsibility. Theory has been built upon the
theory that a person should be held criminally responsible only for acts he intends to commit.
In the Indian Criminal Procedure, Doli Incapax recognizes that there is a line (age line) below which children
are not truly capable of criminal behavior because they are incapable of the requisite moral and cognitive
process. In the Indian Criminal procedure this line is 7 years of age.

Hence, as the age advances the maxim losses its force. So A child above 7 and below 12 is as much liable As an
adult but the act must be accompanied with a malice .
All these maxims comes under JUVENILE JUSTICE ACT,2015.

Juvenile Justice (Care and Protection of Children) Act, 2015 has been passed by Parliament of India.[1] It
aims to replace the existing Indian juvenile delinquency law, Juvenile Justice (Care and Protection of Children)
Act, 2000, so that juveniles in conflict with Law in the age group of 1618, involved in Heinous Offences, can
be tried as adults.[2] The Act came into force from 15 January 2016.
This act catagories child in 3 catagories viz a-viz
(a).Age between 0-7 years:-if a child is below 7 years of age as he is at such age presumed to be not endowed with a sufficient
maturity of understanding to be able to distinguish right from wrong,
(b). Age between 7-12 Years:- If the child is above 7 and below 12 but too weak in intellect to judge what is right or wrong. The principle
of the law may be expressed in tabular form as follows:
The circumstances of a case may disclose such a degree of malice as to justify the maxim miltia supplet actatem (Malice supplied
defect of years)

Aims and Objectives

The aim of the project is to-

1. To find the exact meaning and applicability of the legal maxim MILITIA SUPPLET
AETATEM .
2. To encorage people to under and act according the juvenile justice
3. To create a database capturing vital information of lawyers of past cases and there judgements.
.

Hypothesis

The researcher believes that-

1. MILITIA SUPPLET AETATEM is very essential to see whether the crime has been committed or not.

2. Development in MILITIA SUPPLET AETATEM is essential to know to come to an exact conclusion.

Research Methodology

In this project Doctrinal Method of Research is used. Doctrinal Methods refer to Library research, research or
processes done upon some texts writings or Documents, legal propositions and Doctrines, Articles, Books as
well as Online Research and Journals relating to the subject. This project is an intensive one so this method is
sufficient to address the findings and to arrive at concrete conclusions.

Tentative Chapterisation

Introduction

1. DEfination Malitia Supplet Aetatem is a legal maxim, used in India, with the following meaning:

Malice supplements age; malice supplies want of age. A child is presumed to be doli incapax (incapable of
crimes); but this presumption may be rebutted by evidence of mischievous discretion or guilty knowledge that
he was doing wrong; except that a boy under fourteen cannot be convicted of rape. The principle of law is
malitia supplet aetatem.

This is a legal maxim which means malice supplements age. it is applicable in india under the section 82
and 83 of I.P.C. Malice or intention is very important in a criminal act. The other associated words to this
maxim are doli capax and doli incapax. doli capaxin legal terms means any person who is able to form an
intention of his ownand can commit a crime under his own understandingans will.
 While doli incapax is just opposite of doli capax where the person is not in a phisical and mantal condition
to form an intension of where the act commited by him is of a wrongful nature or not.

This maxim is mainly used in the context of juveline justice as it deal the intesion and the court defines
intension only with respect to the age.

Juveline is a term in criminal law synonymous with child

As used in section 27 of criminal procedure and the child according to dictionary meaning is a person of tender
age.

Section 82 of indian penal code exornate under seven years of age from criminal libility. On the other hand
section 83 of indian penal code extended benefits of section 82 also to those who are above 7 yearsbbut under
twele years of age. If they have not attainted sufficient maturirty of understanding to judge the nature and
cnsequenced of his conduct on that occasion.

Now considering the provosion of repealed juvenile justice act,1986, a juvenile means a boy who has not
attainted the age of sixteen and a girl who has not attained the age of eighteen years without qualifying the other
circumstances surrounding the juvenile at the time of commision of the offence, likewise section 2(k) of the
juvenile justice( care and protection of children ) act 2000 defines the term juvenile or child means a person
who has not completed the age of eighteen years of age.

The new act swept away the rovisions of section 82 and 83 of indian penal code also byignoring the important
and reasonable safegaurd for misuse, by making a distinction, demostrated in a sentence, who has not attained
suffient maturity of understanding to judge of the nature and consequences of his conduct on the occation.

It is well known principle of criinal justice that mens rea or criminal intent is an important guiding factor to
judge the nature, gravity and liability of the criminal act, it is the absence of mns rea or criminal intent
whichprovides for the special provisions and care of juvenile .

Sections 82 and 83 of Indian penal code states that nothing is an offence which is done by a child under seven
years of age and Section 83 says 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 of the nature and consequences
of his conduct on that occasion.

Law of exemption from criminal liability in the case of minors

These two sections lay down a rule which owing to its origin in the civil law, had long since become established
in the criminal systems of all civilized countries. In English Common Law, a child below seven years of age
cannot be guilty of any criminal offence whatever may be evidence as to its possessing a guilty state of mind in
the ordinary course of nature.

A person of such age is absolutely incapable of distinguishing between right and wrong. He is absolutely doli
incapax. Indian law on this point is the same. If a child is accused of an offence under the Code, proof of the
fact that he was at the time below 7 years of age is ipso facto an answer to the prosecution.

The circumstances of a case may disclose such a degree of malice as to justify the maxim miltia supplet actatem
(Malice supplied defect of years).

The privilege of a child aged between 10 to 14, is absolute under English law, while it is qualified in India.
According to the English law an infant between the age of ten and fourteen years is presumed to be doli
incapax.

But under this Code, if the accused is above seven years of age and under twelve, the incapacity to commit an
offence only arises when the child has not attained sufficient maturity of understanding to judge the nature and
consequences of his conduct and such non-attainment would have apparently, to be specially pleaded and
pursued, like the incapacity of a person who at the time of doing an act charged as an offence, was alleged to
have been of unsound mind whether really the child in question possesses sufficient maturity of understanding
is a matter to be inferred by the Court from the facts and circumstances of the case.

In England it is a presumption of law regarding the sexual offences that a boy below fourteen years cannot be
guilty of rape. In India, however, the presumption of English law has no application and therefore boy of twelve
years may be convicted of attempt to commit rape.

A minor girl aged more than 12 years can be guilty of an offence so long as her case is not covered by Sections
82 and 83 of the Code. Any offence punishable under the Code including an offence punishable under Section
408 can be committed by a person more than 12 years of age. Criminal liability is quite distinct from civil
liability. A person may be criminally liable even though he may not be civilly liable.

Illustrations:
(i) A child of 9 years of age took a necklace valued at Rs. 2/8/- from another boy and immediately sold it to
another for five annas, the child was discharged under this section, but the accused was convicted of receiving
stolen property for the court considered convict displaying sufficient intelligence to hold him guilty.

(ii) The accused, a girl of 10 years of age, a servant of the complainant, picked up his button worth eight annas
and gave it to her mother. She was convicted and sentenced to a months imprisonment. But the High Court
quashed the conviction holding that there was no finding by the Magistrate that the accused had attained
maturity of understanding sufficient to judge the nature of her act.

In Marsh v. Loader the defendant caught a child while stealing a piece of wood from his premises and gave into
custody. Since the child was under the age of 7 years, he was discharged.

In case of Krishna Bhagwan v. State of Bihar, Patna High Court upheld that if a child who is accused of an
offence during the trial, has attained the age of 7 years or at the time of decision the child has attained the age of
7 years can be convicted if he is able to understand the nature of the offence.

Burden of Proof:
The non-attainment of sufficient maturity of understanding would have to be specially pleaded and proved. The
onus is on the person who claims and the benefit of the general exception to prove the circumstances which
entitle him to exception.

In other words under Section 83 maturity of understanding is to be presumed in case of such children, unless the
negative be proved by the defence; while under English law in the case of a child between ten to fourteen years,
incapacity to commit the crime is to be presumed unless the contrary be proved by prosecution.

2. Significance

3. History of militia supplet aetatem in India

4. Militia supplet aetatem: CONSTITUTIONAL PERSPECTIVE

5. use of militia supplet aetatem in current time

6. Effect of militia supplet aetatem in judicial functioning

Conclusion

History of malitia supplet aetatum in india

The history of juvenile justice and militia supplet actetum in India can be traced back to the 18th century. Prior
to 1773, like other countries the concept of juvenile justice in India was far from developed. Childrens actions,
both criminal and non-criminal, were governed by the existing Hindu and Muslim laws wherein it was the
primary responsibility of the families to monitor their childrens actions. Although these laws had no specific
reference to juvenile delinquents, the Hindu law of Manusmriti referred to certain offences, some of them
included the examples of a child, littering on a public street was not held liable for the actions so ensued, but as
a punishment was required to clean the litter whereas, adults on the other hand, had to pay a fine and clean the
trash.

The period between 1850 and 1919 was a time where the country was faced by a rapid social change,
industrialization and increasing population. These changes brought about a new class of delinquent, neglected
and dependent children needing formal intervention. Thus the need for new legislations dealing with children
was felt. Some of the most important laws passed between 1850 and 1919 were the Apprentice Act (1850), the
Indian Penal Code (1860), the Code of Criminal Procedure (1861), and the Reformatory Act (1876 and 1897).
The Apprentice Act (1850) dealt with young people between the ages of 10 and 18 who were either destitute or
petty offenders. Children who were convicted were made to serve out their sentences as apprentices for
businessmen. The Code of Criminal Procedure of 1861 allowed for separate trials of persons younger than age
15 as well as their confinement in reformatories rather than prisons. It was the result of these enactments that
penal philosophy in India towards juveniles could be seen to be changing from that of penal to reformation. The
concept of a reformatory school for delinquent children came to fruition with the passage of the Reformatory
Schools Act of 1876. This policy of separate treatment of juveniles was further bolstered by the Reformatory
School Act of 1897, which dealt solely with the treatment and rehabilitation of young offenders. It allowed boys
younger than the age of 15 to be placed in reformatory until 18 years of age. Boys younger than 14 years of age
were released on license, only on the grounds that they could obtain subsequent employment. 1

The years following 1950 witnessed both official and non-governmental initiatives that contributed to the
development of a more pronounced juvenile justice system in India. To address the increase in neglected and
delinquent children as a result of partition of the country into Pakistan and India, the Indian government passed
a Central Childrens Act (CCA in 1960). The CCA provided for the care, protection, and treatment of juveniles,
and made it applicable in the territories under direct central government rule. Further still in 1974, India
declared its National Policy for Children, recognizing children as the nations supremely important asset and
that their programmes must find a prominent place in the national plan for the development of human resources.
The policy included, among other things, training and rehabilitation of delinquent, destitute, neglected and
exploited children.

By 1986, almost all states had passed their own child legislations but these Acts lacked consistency in terms of
defining delinquency, court procedures, and institutionalization practices. The Indian government thus felt the
need for a children justice scheme that could be applied throughout the country and this is how Juvenile Justice
Act of 1986 substantiated. The JJA was considered a unique piece of social legislation intended to provide care,
protection, treatment, development and rehabilitation for neglected and delinquent juveniles as well as the
adjudication of matters related to the disposition of delinquent juveniles. To accomplish the goals of this
1
Child Laws in India, www.wscpedia.org
legislation, special provisions were made for separate procedures for handling offenders and non-offenders.
Juvenile courts were created to deal with juvenile delinquents, and juvenile welfare boards were established to
handle neglected juveniles.2 With the enactment of JJA 1986, though there continued to be a single law, two
distinct machineries were set up to deal with neglected juveniles and delinquent juveniles. Pending their
enquiries before their respective competent authorities, both these categories of children were kept in the
Observation Home. JJA 2000 for the first time provided for juveniles in conflict with law and children in
need of care and protection to be kept separately pending their enquiries. This segregation aims to curtail the
corruption of the innocent child from the influence of the criminal juvenile.3
A revolutionary change introduced by the JJA 2000 is in the constitution of the children court referred
to as the Juvenile Justice Board (JJB). It is constituted as a bench consisting of one Magistrate and two social
workers. The decisions are to be made by majority and the Magistrate has a casting vote in case of a tie. The
JJB is required to determine age, decide the question of bail, determine if the child has committed the alleged
offence or not, as well as pass appropriate orders in the matter. In deciding any of these matters, the two social
workers together may overrule the decision of the Magistrate. Realising the importance of special treatment
towards child offenders, the JJA 2000 has provided for appointment of special police officer in each police
station to deal with children under it. It continues to provide for grant of bail to all children irrespective of the
offence being bailable or non-bailable, except when the release will expose the child to moral danger or bring
the child in contact with known criminals or will be against the interest of justice.4

References

WEBSITES-

www.legalservicesindia.com

www.wikipedia.com

www.scribd.org

2
Juvenile Justice in India- On a Path to Redemption, available at
http://www.lawyersclubindia.com/articles/print_this_page.asp?article_id=181
3
Child Protection and Juvenile Justice System for Juvenile in Conflict with Law, Ms. Maharukh Adenwalla,
http://www.childlineindia.org.in/pdf/CP-JJ-JCL.pdf
4
Main Features of the JJA 2000, Juvenile Justice: Securing the Rights of Children during 1998-2008, Dr. Ved Kumari
Conclusion

Before claiming an amendment, we must think of those unfortunate juveniles who may have committed certain
offences in compelling circumstances. Also, though an amendment is sought, there is no defined parameter to
treat an offence as heinous or grave. Those demanding a change must first seek to define the particular offences
for which such amendment is sought. Therefore, either extreme is not desirable. A delicate balance must be
struck as per which most juveniles, as a general rule, are required to be treated in a more humane manner, but in
some rarest of the rare cases of heinous and grievous offences deliberately committed by a juvenile, he may be
subjected to prosecution and punishment under the normal criminal laws of the country. The response to
juvenile crime has to be fair, age-appropriate and in keeping with development psychology. Any amendment to
existing law requires in-depth understanding of the jurisprudence, philosophy and impact of the current law.
Amending the law as a reaction to the countywide outrage against one juvenile may not serve the purpose as it
might affect those other hundreds who are rightfully entitled to the juvenile justice system already prevailing in
the country. Thus, what we require is a balanced and thoughtful approach wherein the juveniles who have the
mental capacity to commit grave offences must be punished with exemplary punishments, while those others
committing petty offences and not possessing the mental capacity to do so must be brought under the veil of
juvenile justice system and efforts must be made to rehabilitate them.