Law Web: Whether juvenile who is tried as adult can be released on bail as per S 12 of Juvenile justice Act?

On detailed analysis of the statutory scheme, the questions were answered as under :-

“26. Clearly therefore, even when a child is sent-up for trial as

an adult before a Children’s Court, the child does not become

an adult or ‘major’, but is only to be treated differently

considering the heinous nature of the offence alleged and

consequent need for a stricter treatment of the offender,

though still as a juvenile in conflict with law. It must be borne

in mind that the Legislature has created this categorization

based upon an assessment of the child’s “mental and physical

capacity to commit such offence, ability to understand the

consequences of the offence and the circumstances in which

he allegedly committed the offence”. If the intention of the

Legislature was that upon such assessment, the child would

de-jure become an adult, then the question of there being a

separate Children’s Court to try him with specific safeguards

provided for the trial would not arise. That however is not the

case.

28. With specific reference to the application at hand, it

bears mentioning that even though a child may be sent-up for

trial before the Children’s Court as an adult, there is no

provision in the JJ Act that requires any departure from

considering the matter of release of such child on bail under

section 12.

12. It is to be noted that the Juvenile Justice Act is a

beneficial piece of legislation and it must be construed by

taking into consideration the object behind it’s enactment,

being to provide for the care, protection, treatment,

development and rehabilitation of neglected or delinquent

juveniles. It is a beneficial legislation aimed at making

available the benefit of the Act to the neglected or delinquent

juveniles.

While construing the provision contained in Section 12,

which contemplate that a juvenile shall be released on bail

notwithstanding anything contained in the Cr.P.C. and Section

12 further stipulates that he may be released with or without

sureties, or may even place under the supervision of the

Probation Officer or under the care of any fit person. The only

embargo in not releasing such a person on bail is the proviso,

which prescribes that if there appears reasonable grounds for

believing that the release is likely to bring that person into

association with any known criminal or expose the said person

to moral, physical or psychological danger or the person’s

release would defeat the ends of justice.

16. In any case, the J.J.Act focuses on a principle of

presumption of innocence and on the principle of best interest

as well as principle of repatriation and restoration, by virtue of

which, the applicant, who is a juvenile, has a right to be reunited

with his family at the earliest and to be restored to the

same socio-economic and cultural status that he was in, before

coming under the purview of this Act, unless such restoration

and repatriation is not in his best interest.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

BAIL APPLICATION NO.2282 OF 2021

Shubham @ Bablu Milind Suryavanshi Vs The State of Maharashtra

CORAM: BHARATI DANGRE, J.

DATED : 21st OCTOBER, 2022

1. Heard Advocate Ms.Sahana Manjesh for the applicant,

who is a juvenile in confict with law (CCL) and seeks his

release on bail in C.R.No.141 of 2020, registered with Boriwali

Police Station. The applicant is aged 17 years 11 months and 6

days and is one of the accused charged for committing murder.

He came to be arrested on 13/03/2020 and seeks his release

by taking beneft of the statutory provision in form of Section

12 of the Juvenile Justice (Care and Protection of Children)

Act, 2015 (for short, “The J.J. Act”).

2. Learned counsel for the applicant would vehemently

submit that the incident complained of, is alleged to have

taken place on 12/03/2020 and the applicant came to be

arrested on 13/03/2020, when he was a juvenile. On

completion of investigation, charge-sheet was fled under

Section 302 read with Section 34 of I.P.C. and the Juvenile

Justice Board (for short, “The JJB”), directed the applicant to

be tried as an adult. He preferred an application before the

Sessions Court at Dindoshi, who rejected his application on

wrongful consideration of Section 12 by holding that, since he

was tried to be an adult, he was not entitled to be released on

bail.

Learned counsel would place reliance upon the mental

health report of the applicant as well as the report of the CCL

from the Probation Department and also the preliminary

assessment report of the applicant.

Learned counsel would also place reliance upon various

authoritative pronouncements, including the decision of the

Delhi High Court in the case of the CCL ‘A’ Vs. State (NCT of

Delhi)1, the decision in case of the Re-A Juvenile Vs. State of

1 2021 Cri.L.J.1251

Orissa2 and an order passed by this Court in Bail Application

No.3838 of 2021, to support her submission that the applicant,

being juvenile, is entitled for being extended the protection

under Section 12 of J.J.Act.

Per contra, learned A.P.P. would strongly oppose the

application and submit that the date of birth of the applicant is

06/04/2002 and on being arrested, he was produced before

the JJ Board, which directed to retain the applicant in the

Observation Home at Dongri. Inviting my attention to the

grave role attributed to the present applicant, learned A.P.P.

would submit that at the time of commission of offence, the

applicant was aged 17 years, 11 months and 24 days. She

would submit that in terms of Section 15 of J.J.Act, which

specifcally provide that in case the child is between 16 to 18

years and he has committed a heinous offence, then the JJ

Board may conduct a preliminary assessment in order to

assess the maturity level of the child, his mental and his

physical capacity to conduct such an act and it may take the

aid of experienced psychologists and psycho-social workers to

reach a conclusion, whether he is to be tried as a child or as an

adult. She would submit that in case the Board is of the

2 2009 Cri.L.J. 2002

opinion that the child is not to be tried as an adult, it would

pass the order as per the guidelines issued under Section 18 of

the Act.

Learned A.P.P. would rely upon the said guidelines, which

are reproduced in the affdavit and read thus :-

“18. Procedure to be followed in respect of sections

21,22,23,24, 25 and 26 of the Act.-

(3) The offences against a juvenile in confict with law

or a child specifed in sections 23, 24, 25 and 26 shall be

either bailable or non bailable besides being cognizable under

the provisions of the Code of Criminal Procedure, 1973 (2 of

1974) and the procedures shall apply on the Police, the

Board and the concerned authorities and functionaries

accordingly."

The contention of the Applicant that he being a juvenile

should compulsorily be released on bail and that he cannot be

detained under any circumstances does not hold good and is

not maintainable under the provisions of law.

That proviso to sub-section (1) of Section 12 of the

Juvenile Justice Act, 2015 mentions in clear terms that,

"Provided that such person shall not be so released if there

appears reasonable grounds for believing that the release is

likely to bring that person into association with any known

criminal or expose the said person to moral, physical or

psychological danger or the person’s release would defeat the

ends of justice, and the Board shall record the reasons for

denying the bail and circumstances that led to such a

decision.”

Learned A.P.P. would urge that Section 12 of the Act

cannot come to an aid of the applicant, as he is directed to be

tried as an adult by the Sessions Court and, therefore, no

affdavit can be derived.

3. With the able assistance of the respective counsel, I have

perused the material against the present applicant as compiled

in the charge-sheet. The prosecution case is, on 12/03/2020,

the applicant and the main accused, one Ajay Shinde

approached a group of three friends, who were chatting. It is

alleged that there was a old rivalry between accused Ajay

Shinde and these three friends. When the approached towards

the group of these three people, the applicant was allegedly

holding piece of broken glass in his hands, whereas accused

Ajay Shinde was holding a beer bottle. On sensing that the two

are approaching towards them, the three persons tried to fee

away from the spot, but the accused persons caught hold of one

of the three friends, namely, Vighnesh and stabbed the piece of

glass in his body, which resulted in bleeding injury. He was

taken to the hospital, where he was declared dead.

4. The main accused-Ajay Shinde surrendered himself

before Borivali Police Station and he named the present

applicant, who came to be formally arrested on 13/03/2020.

As the applicant was a minor, he was remanded to Children’s

Home in Dongri. The applicant was directed to be tried as an

adult and his case was committed to the Sessions Court,

Dindoshi (Children’s Court), where the case is numbered as

Sessions Case No.425 of 2020.

5. It can be seen that the applicant preferred a bail

application and on 29/10/2020, the Principal Magistrate,

Suburban Juvenile Justice Board, recorded as under :-

“By preliminary assessment order dated 29/10/2020, this

case is transferred for trial to Children’s Court. Considering

the heinous nature of offence and the fact that Children’s

Court will be trying the offence it will not be proper for the

Board to decide bail application, so the bail application be put

up before Children’s Court.”

The said order was passed, after examining the mental health

report received from Sir J.J.Group of Hospitals in respect of

the psychiatric evaluation of the juvenile as well as his

physical examination to ascertain the physical capacity. A

report from the Probation Department from Police Station

Boriwali was also forwarded to the JJ Board, where it is

recorded as under :-

“CCL Shubham has been staying in the Observation Home

for more than 7 months. During his stay in the Home, on

few occasions he had exchange of words with the staff of

home as well as other inmates on discipline issues. Most

of the time he found to be decent-well behaved, he

actively participated in independence day cultural

program, performed well the acts, noticed full of zest in

the task various tasks allocated to him, showed

leaderships skills. Daily attending physical training

sessions. He is at present learning carpentry work,

feedback from the Carpentry teacher is positive about

Shubham. CCL Shubham regularly attended counselling

sessions through video calls with the counselor.

Overall behaviour of the CCL Shubham noticed to be

good.”

6. The JJB on 29/10/2020, transferred the trial of the case

to the Children’s Court having jurisdiction, by considering the

preliminary assessment report as well as the mental health

report placed before it and it recorded as under :-

“9. The Medical Superintendent, Sir J. J. Hospital has

submitted medical certifcate wherein it is mentioned that, on

physical examination of the said C.C.L., no abnormality noted

which can prevent him to commit the offence registered

against him.

10.Mental Health Report dated 27/07/2020 is also on record.

The said report is as follows :

He understands seriousness of allegation against him and

that it is against law. No perceptional abnormality. No

delusions. Insight present. Judgment intact.

Impression : No active psychopathology at present and in the

past.

Conclusion : No evidence of mental incapacity to commit the

offence.

11.The sequence in which the events unfolded during the

alleged incident reveal that C.C.L. and the major accused had

predetermined to commit the crime, followed victim to the

spot and left the scene only after causing deadly injuries to

the victim. These circumstances and the Physical and Mental

Health Report of C.C.L. necessitate that there is need for trial

of the said child as an adult. So, the case shall have to be

transferred for trial to the Children’s Court.”

On the application being preferred before the Sessions Court at

Dindoshi, it came to be rejected on 29/01/2021, by recording

as under :-

“5. As per the FIR, the applicant stabbed the deceased with a

piece of bottle on his neck, resulting into his death. The

offence is committed by the applicant with pre-meditation, as

he approached the deceased with the piece of bottle, and

thereafter, stabbed him. Considering the gravity of the crime,

the applicant does not deserve to be enlarged on bail. Section

12 of the Juvenile Justice Act cannot come to an aid of the

applicant, as he has to be tried as adult by this Court. Section

12 enables the Juvenile Justice Board to enlarge a juvenile on

bail.”

7. It can be seen that the application of the applicant has

been rejected on the ground that Section 12 of the Act cannot

come to his rescue, as he is directed to be tried as an adult and

Section 12 enables the Juvenile Justice Board to enlarge a

juvenile on bail.

The question that arises for determination is, whether on

being tried as an adult, is the juvenile denuded of the statutory

right available to him under Section 12 of the Act.

8. The said question is no more res integra and has been

deliberated upon by several High Court, including the Bombay

High Court. Before I proceed to deal with the said decision, it

would be necessary to reproduce Section 12 of the Act, which

is a provision pertaining to the release of a child alleged to be

in confict with law and it reads thus :-

12. Bail to a person who is apparently a child alleged to be in

confict with law. (1) When any person, who is apparently a

child and is alleged to have committed a bailable or non-bailable

offence, is apprehended or detained by the police or appears or

brought before a Board, such person shall, notwithstanding

anything contained in the Code of Criminal Procedure, 1973 (2

of 1974) or in any other law for the time being in force, be

released on bail with or without surety or placed under the

supervision of a probation offcer or under the care of any ft

person:

Provided that such person shall not be so released if there

appears reasonable grounds for believing that the release is

likely to bring that person into association with any known

criminal or expose the said person to moral, physical or

psychological danger or the person's release would defeat the

ends of justice, and the Board shall record the reasons for

denying the bail and circumstances that led to such a decision.

(2) When such person having been apprehended is not released

on bail under sub-section (1) by the offcer-in-charge of the

police station, such offcer shall cause the person to be kept

only in an observation home '[or a place of safety, as the case

may be,] in such manner as may be prescribed until the person

can be brought before a Board.

(3) When such person is not released on bail under sub-section

(1) by the Board, it shall make an order sending him to an

observation home or a place of safety, as the case may be, for

such period during the pendency of the inquiry regarding the

person, as may be specifed in the order.

(4) When a child in confict with law is unable to fulfll the

conditions of bail order within seven days of the bail order,

such child shall be produced before the Board for modifcation

of the conditions of bail.”

9. Reading of Section 12 makes it imperative to release the

applicant, who is alleged to have been committed bailable or

non-bailable offence and this power has to be exercised

notwithstanding anything contained in the Code of Criminal

Procedure, which expect a decision of release, taking into

account the provisions of Section 439 of Cr.P.C. It is not in

dispute that the applicant is a child at the time of commission

of offence and would fall within the meaning of ‘child in confict

with law’, as defned in the Act of 2015.

In the scheme of enactment, it can be seen that Section

12 contains an imperative mandate to release a child on bail,

when he is apprehended or detained in connection with an

offence and it is a special provision, which stand to the

exclusion of the Code of Criminal Procedure. Section 5 of the

Cr.P.C. contained a saving clause, which reads thus :

“5. Saving.- Nothing contained in this Code shall, in the

absence of specifc provision to the contrary, affect any special

or local law for the time being in force, or any special

jurisdiction or power conferred or any special form of

procedure prescribed, by any other law for the time being in

force.”

The parameters for considering an application for bail filed by

a juvenile under Section 12 of the Act of 2015 are clearly

distinguishable from the application filed under Section 439 of

Cr.P.C. and after following the procedure as prescribed under

the Act i.e. from Sections 15 to 18 when a decision is taken to

try a juvenile as an adult, the issue that arises for

consideration is, upon such a contingency, whether the beneft

of Section 12 can be denied to him.

This precise question arose for consideration before the

High Court of Delhi in case of CCL ‘A’ (supra) and vide a details

judgment delivered by the learned Single Judge on October 19,

2020, the issue has been specifcally answered and on going

through the said law report, I cannot disagree, but express

concurrence with the view expressed by Justice Anup Jairam

Bhambani.

10. A similar issue was answered by the Delhi High Court in

CCL ‘A’ (supra), when a similar point arose for determination

and it was answered by recording that bail plea on behalf of a

juvenile must always be considered on the criteria and

parameters set-out in Section 12 of the J.J.Act.

11. The precise questions that were framed by the learned

Judge of the Delhi High Court read as under :-

“(a) When upon a preliminary assessment made by the

JJB under section 15(2) of the JJ Act, the JJB is of the

opinion that there is need for trial of the child as an ‘adult’ and

it transfers the trial to the Children’s Court, does the child in

conflict with law de-jure become an ‘adult’, to be treated as

such in all subsequent proceedings ?

(b) Whether an application for bail is maintainable

before the High Court under section 439 Cr.P.C. for a child in

confict with law, who is sent-up for trial as an adult before the

Children’s Court ?

On detailed analysis of the statutory scheme, the

questions were answered as under :-