Introduction
The Bharatiya Nyaya Sanhita, 2023 (BNS) introduced several provisions dealing specifically with the exploitation of children in criminal activities. One such provision is Section 95, which deals with adults who hire, employ, engage or use a child to commit an offence. The provision is significant because children can sometimes be used by adults to carry out criminal activities on the assumption that the child will face a different legal process under juvenile justice laws. Section 95 seeks to hold the person who involves the child in the offence criminally responsible.
What Does Section 95 Of The BNS Say?
Section 95 of the Bharatiya Nyaya Sanhita, 2023 deals with hiring, employing or engaging a child to commit an offence. The provision states that a person who hires, employs or engages a child to commit an offence can face imprisonment of not less than three years and up to ten years, along with a fine. If the offence is actually committed, the person can also face the punishment prescribed for that offence as if the offence had been committed by that person himself. The provision also expressly includes using a child for sexual exploitation or pornography within its scope.
Who Is Considered A Child Under The BNS?
Under Section 2(3) of the BNS, a child means a person below 18 years of age. Therefore, Section 95 can apply when an adult involves a person below 18 in criminal activity. The provision focuses on the conduct of the person who hires, employs, engages or uses the child, rather than treating the child as an ordinary adult offender.
What Types Of Crimes Can Involve Section 95?
Section 95 is not restricted to one particular type of offence. It can apply whenever a child is deliberately involved or used to commit an offence. For example, the provision can become relevant when children are allegedly used as shooters, drug couriers, thieves, participants in violent offences or sellers of illegal substances. It can also apply to situations involving sexual exploitation or pornography, which the explanation to Section 95 specifically covers. Recent cases show that the provision has been invoked in several different circumstances.
How Was Section 95 Used In A Delhi Illicit Liquor Case?
In Savitri v. State of Delhi, the Delhi High Court considered allegations against a woman who was accused of trafficking a child from his native village and getting him employed in the sale of illicit liquor in Delhi. The case involved Section 95 BNS, along with provisions of the Delhi Excise Act and the Juvenile Justice (Care and Protection of Children) Act, 2015. The Delhi High Court refused to grant anticipatory bail, taking note of the allegations concerning the child’s involvement in the illicit liquor trade. The case demonstrates that Section 95 can extend beyond conventional violent crimes and can apply where a child is allegedly used in an illegal commercial activity.
How Was Section 95 Applied In Cases Involving Drug Trafficking?
Section 95 can also become relevant when children are allegedly used as drug couriers. In one reported Uttarakhand case, police alleged that parents had used their 17-year-old son to deliver heroin. The case reportedly involved Section 95 BNS along with provisions of the Narcotic Drugs and Psychotropic Substances Act. Such cases demonstrate the particular concern behind the provision: an adult may attempt to use a child to carry out an offence while keeping the child at the centre of the criminal activity. The application of Section 95 allows investigators to specifically address the alleged role of the adult who involved the child.
What Happened In The Nagpur Cases Involving Minors?
In Nagpur, police reported the arrest of 18 adults for allegedly involving 14 minors in different criminal activities. The reported offences included vehicle theft, assault, sexual harassment, rioting and burglary across several police stations. Police reportedly invoked Section 95 BNS against the adults. The authorities stated that the provision was being used to target adults who allegedly exploit children to carry out criminal activities. The case illustrates that Section 95 can potentially cover a range of offences rather than being restricted to one particular category of crime.
Can Section 95 Apply To Sexual Exploitation Of Children?
Yes. The Explanation to Section 95 specifically states that hiring, employing, engaging or using a child for sexual exploitation or pornography is covered by the provision. However, depending on the facts, other laws can also apply. For example, conduct involving sexual offences against children can attract provisions of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and other applicable laws. Therefore, Section 95 does not necessarily operate alone in cases involving children.
What Is The Punishment Under Section 95 BNS?
Section 95 provides for imprisonment of not less than three years and which may extend to ten years, along with a fine. There is an additional consequence when the offence involving the child is actually committed. The person who hired, employed or engaged the child can also receive the punishment prescribed for that offence as if the offence had been committed by that person himself. The offence under Section 95 is classified as cognizable and non-bailable under the First Schedule to the Bharatiya Nagarik Suraksha Sanhita, 2023.
Why Was Section 95 Introduced?
Section 95 addresses a particular form of exploitation: using children as instruments for criminal activity. Children may be particularly vulnerable to pressure, manipulation, financial inducement or influence from adults. An adult may also attempt to involve a child because juvenile offenders are dealt with under a separate legal framework. The provision therefore places direct criminal liability on the person who deliberately involves the child in the offence.
Does Section 95 Punish The Child For Being Used?
Section 95 specifically targets the person who hires, employs, engages or uses the child. The child may separately come within the framework of the Juvenile Justice (Care and Protection of Children) Act, 2015, depending on the circumstances. The legal treatment of a child alleged to have committed an offence is different from the criminal liability imposed on an adult who allegedly uses that child. Therefore, the fact that a child was involved does not automatically mean that the adult who allegedly organised or directed the activity escapes liability.
Conclusion
Section 95 BNS creates a specific offence for using children to commit crimes. Its scope is wider than a single category of offence. Recent cases show allegations involving illicit liquor sales, drug trafficking, theft, violence and other criminal activities. The law also expressly covers the use of children for sexual exploitation or pornography. The important legal principle is that an adult cannot avoid responsibility simply by placing a child at the centre of the criminal activity. Where the ingredients of Section 95 are established, the person who allegedly used the child can face a separate punishment under the BNS, in addition to the punishment connected with the underlying offence. Section 95 BNS is therefore an important provision to know because it focuses not only on the crime committed, but also on the exploitation of children as participants in criminal activity.
