Saturday, September 23, 2023

Allahabad High Court denies bail to minor rapist, directs Juvenile Justice Board to expedite hearing

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The Allahabad High Court has dismissed bail petition of a Juvenile, after observing that the court can refuse bail in a case, where his release is likely to defeat the ends of justice.

The Single-Judge Bench of Justice Jyotsna Sharma directed the Juvenile Justice Board to expedite the hearing and conclude the same at the earliest.

The order was passed on a Criminal Revision filed by a minor under Section 102 of the Juvenile Justice Act, challenging the order dated December 6, 2021 passed by the Juvenile Justice Board, Mainpuri.

The petition further challenged the February 10, 2022 order passed by the Special Judge (POCSO Act), Mainpuri in Criminal Appeal affirming the order of the Juvenile Justice Board and declining bail to the juvenile in a matter arising out of case under Section 376AB of Indian Penal Code (IPC) and Section 5M/6 of the Protection of Children from Sexual Offences (POCSO) Act, registered at Police Station Elau in Mainpuri district.

The petitioner contended that the orders impugned were arbitrary, unjust and had been passed against the settled principles of law and against the mandate of Section 12 of the Juvenile Justice Act.

It said the the assumptions of the courts below that in case he was released on bail, he would be exposed to physical, moral and psychological danger and that the ends of justice shall stand defeated, were based on no evidence whatsoever.

The Counsel representing the petitioner-convict further said that bail was declined without any cogent reasons and on surmises and conjectures. There was nothing on record to show that the juvenile was in company of criminals before the arrest, as he had no criminal history. The case against him was false, while the conclusion that the parents were not having any control over the revisionist was baseless.

Bail has been declined on the basis of gravity of the offence, which was against the settled principles of law, added the lawyer.

The Court noted that in this case, an FIR was lodged by the mother of the survivor with the allegations that when her daughter, aged about six years, was playing outside her house below the shed, the accused juvenile, aged about 15 years, lured her on the pretext of giving toffee and took her behind a hut and committed rape on her.

She said her daughter started bleeding profusely and was brought to the house by her cousin. When they went to the parents of the juvenile to complain against him, his mother thrashed him (juvenile). The survivor was given first aid and referred to for higher medical assistance.

Finding the accused as juvenile, the matter was brought before the Juvenile Justice Board; his age was found about 12 years and 10 months in an age determination inquiry done on October 5, 2021; the social investigation report was called, wherein it was observed by the District Probation Officer that the boy requires strict control and supervision.

The bail to the juvenile was declined by the Juvenile Justice Board and the appeal preferred on behalf of the juvenile was also dismissed.

The Court said, It is clear that bail to a juvenile is not must in all cases as it can be denied for certain reasons. The law does not say that once a person is found a juvenile, he should be released on bail notwithstanding other facts and circumstances of the matter. It may be noted that the bail can also be denied if the juvenile’s release, in the opinion of the Court, would defeat the ends of justice.

The phrase ends of justice is undoubtedly a meaningful phrase bringing within its sweep many factors, including the nature of the crime and the merits of the matter, though ordinarily, as has been held in number of cases, the merits of the case or the nature of the accusations are not to be considered.

At the same time, there may be other facts and circumstances, which cannot simply be passed over by the court concerned. As far as the nature of the offence is concerned, the Juvenile Justice Act itself differentiates between offences falling into three categories – petty, serious and heinous offences.

If the Justice Justice Act, 2015 is studied, it becomes quite clear that the cases falling in different categories on the basis of classification into petty, serious and heinous have been dealt with differently.

It can safely be remarked that the scheme of the Act takes into consideration the nature of the offence as well.

The need for dealing the matters of heinous offences in a more sensitive manner have been brought into focus by the courts of law, time and again, through various judgements.

In fact, the courts as well as the legislature have always been sensitive to this aspect of the matter.

The Court further said that whenever a Court of law decides to exercise his powers under the provisions of Juvenile Justice Act, 2015, the general principles as enumerated in Section 3 of the Act have to be kept in mind as guiding factor.

On one hand, all decisions regarding the child should be based on primary consideration of best interest of the child, on the other hand, the demands of justice of the other side cannot be simply shrugged off. The concern of the victim’s family and the larger interest of the society cannot be dealt with in a contemptuous manner.

In succession to aforesaid observations, the policy of the act must be brought into focus. Very importantly, it may be noted that the scheme of the Act has a twin approach, which is, reformatory as well as retributive to certain extent.

When dealing with bail grant or refusal thereof, the ends of justice may compel the Court to strike a balance between competing and often conflicting demands of justice of both the sides, that is, the accused and the victim.

When viewing the case from this angle, the nature of the crime, the methodology adopted, the manner of commission and the evidence available may assume ample
significance. Moreover, the aim and object of this act is to achieve not only the welfare and betterment of a juvenile by extending to him services of reformatory nature, so that he can be brought back to the mainstream of society as a person of healthy mind, but also to address the concerns of society at large at this stage.

This aim cannot be achieved unless a holistic view of the matter is taken.

The Court opined that to give meaning to the phrase ‘ends of justice’, the matter of bail has to be seen literally through a prism having three angles: firstly, the angle of welfare and betterment of the child itself, that is, the best interest of the child.

Secondly, the demands of justice to the victim and her family and thirdly, the concerns of society at large. In the end, the court has to depend upon its own robust sense of justice.

“In this case, a girl of very tender age of 6 years was put to violent sexual assault by a boy of merely 15 years. She was enticed in a well-planned manner by offering her sweets. The trauma and shock caused to an innocent girl, who had no understanding and inkling of the act with which she had to go through and the resentment which was caused to the members of her family, can easily be understood,” the Court observed and dismissed the petition.

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