Friday, February 3, 2023

Allahabad High Court dismisses bail appeal of juvenile delinquent

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The Allahabad High Court has dismissed a petition holding that while denying or granting bail to a juvenile under the Juvenile Justice Act, much reliance cannot be placed upon social background or social investigation report as they are usually prepared without proper research.

A single-judge bench of Justice Jyotsna Sharma passed this order while hearing a petition filed by the minor son Of Moolchand through His natural guardian, his grandfather Ved Prakash.

The criminal revision under Section 102 of the Juvenile Justice Act, 2015 has been filed on behalf of the minor’s father Moolchand through his natural guardian/grandfather Ved Prakash S/o Late Desh Raz R/o Village Akbarpur Shadat, Police Station Bahsuma, District Meerut with the prayer to admit the minor to bail along with the prayer to set aside the order dated 07.07.2021 passed by the Juvenile Justice Board, Meerut and order dated 26.08.2021 passed by the Additional Sessions Judge/Special Judge, POCSO Act, Meerut in Criminal Appeal arising out of Case under Section 302 IPC, Police Station Bahsuma, District Meerut by which the bail to the juvenile was declined.

As per the version of the FIR, the informant’s son Nitin had gone to his college on his Bullet motorcycle to receive his report card. When he approached the gate of his college, he found the revisionist (minor) and his brother Arjun standing there. He engaged in some conversation with them. Suddenly, the minor whipped out a country-made firearm and shot at Nitin. He was referred to Meerut Hospital, where he succumbed to his injuries.

On the basis of the FIR lodged by the deceased’s father within less than 5 hours of the incident on the same day, a case under Section 302 IPC, was registered and investigated. On finding one of the accused persons, who is revisionist, a minor, the matter was placed before the Juvenile Justice Board, Meerut where an order for determination of age was passed on 23.06.2021 and he was found to be a little over 13 years and 6 months. The minor applied for bail through his guardian/father namely, Moolchand but the same was rejected by the Board. The appeal filed against the above noted order dated 07.07.2021, was also dismissed by the Appellate Court below.

Aggrieved by the above two orders, the minor through his guardian/grandfather has come in criminal revision.

It is submitted by the revisionist that the courts below have not proceeded in accordance with the provisions of Section 12 of the Juvenile Justice Act, 2015 which are mandatory in nature and have dis-entitled the minor from bail without any good reason. The courts below failed to consider that no material has been collected to demonstrate that there was any likelihood of the juvenile being brought in association with any known criminals or to expose him to any moral, physical or psychological danger or that his release is likely to defeat the ends of justice.

It is next submitted that the juvenile has no criminal history and that the courts below have only considered the gravity of crime and dismissed his application on merits of the matter which clearly goes against the statutory provisions of Section 12 of the Juvenile Justice Act. In Criminal Revision (Amit vs State of U.P) decided on 16.03.2016, this Court referred to the earlier judgement in Vijendra Kumar Mali vs State of U.P, 2003 (1) J.I.C 103, wherein the Court reiterated that in a number of judgments, it has been categorically held that bail to the juvenile can only be refused if one of the grounds as provided in proviso to Section 12(1) of the Juvenile Justice Act, 2015 exist.

So far as the ground of gravity is concerned, it is not covered under the relevant provisions. If the bail application of the juvenile was to be considered under the provisions of CrPC, there would have been absolutely no necessity for the enactment of the aforesaid Act. Section 12 of the Act contains a non-obstante clause, which indicates that the general provisions of CrPC shall not apply. Therefore, the gravity or seriousness of the offence should not be taken as an obstacle or hindrance to refuse bail to a delinquent juvenile.

It is contended that there exists no material to justify rejection of bail on the grounds envisaged in Section 12 of the Act. In view of the above provisions, the ‘child in conflict with law’, who has been in custody for quite some time deserves to be released on bail otherwise, the purpose of provisions of Section 12 of the Juvenile Justice Act shall stand defeated.

The Court observed that the Juvenile Justice Board, Meerut took into consideration the report of the District Probation Officer and made it a sole ground for dismissal of his bail application.

The Court noted,

The Appellate Court below took into consideration among other facts, the fact that the weapon of offence was recovered from the guardian/father of the juvenile which was bought almost a year before the incident of this case. The juvenile took that country-made firearm out from the almirah in his house and used that very firearm to carry out this frightful crime of murder.

The Appellate Court below took into consideration the family background and the fact that because of disturbed and not so tranquil atmosphere in the family, he was driven to commit this kind of offence at a tender age of 13 1/2 years and that in all probability, he is not likely to get good guidance from his family members and therefore, on the basis of above observations, the Appellate Court below has dismissed the appeal.

The Court said,

Though cases of juveniles who have allegedly committed a heinous crime and are of the age of above 16 years have been treated differently from those who are found to be of the age of below 16 years in the Juvenile Justice Act, 2015. However, by no stretch of imagination, it can be said that the Courts are bound to release the juvenile below the age of 16 years once he is found to be of that age and no more.

Ordinarily to disentitle the juvenile from the benefits of bail, as envisaged in Section 12 of the Juvenile Justice Act, the merits or say the allegations against him are not important and relevant as has been consistently held by the Courts from time to time. However, as said earlier, the allegations may assume importance where the Court has to form an opinion about the ends of justice. The Courts are under obligation to address the concerns of both the sides while deciding upon whether or not the ends of justice shall stand defeated in case the juvenile is admitted to bail.

In my firm view, the manner of commission of the crime, the nature thereof cannot be ignored while striking a balance between the demands of justice of either of the sides. It shall be impudent to hold, regardless of the age of the juvenile, that the nature of the crime or merits of the matter are of no relevance when judging the entitlement of a juvenile to bail in cases where heinous crimes are committed. In other words, the nature of crime, the manner of commission, the methodology applied, the mental state, the extent of involvement, the evidence available shall be the factors to be taken into account in both the types of cases where the juvenile is below 16 or where the juvenile is above 16. No artificial line can be drawn between the two categories when considering bail from this angle.

The Court held,

Coming to the facts of present matter, this cannot be ignored that it was the juvenile who came prepared and armed with a country-made firearm and though he accompanied his brother, but it was he, who fired upon Nitin, killing him almost instantaneously or sometime thereafter. Before commission of crime, he picked the firearm from his own house indicating that this incident was not committed at a spur of moment, rather it was planned. This fact can also not be pushed aside that the bail application and the present revision has been filed on behalf of the minor through his grandfather and not by his mother or father.

The District Probation Officer has reported that he was not properly taken care of in his family and that he fell into bad company. It is not very clear how a grandfather can properly take care of a boy who is aged about 13 or 14 years. This fact is also worth notice that he may be in specific need of supervision or intervention and that he may be needing proper professional counseling and behavioral therapy.

“The fact of matter is that in this case, a school going juvenile of a very tender age of little over 13 years and 6 months, indulged in a very heinous crime in a well planned manner, who came ready with a firearm and had a main role of shooting the victim; the victim herein was also a school going boy; sudden loss of a young member must have sent shock waves to victim’s family members and they certainly must have gone through emotional trauma. The Court is, in such circumstances expected to strike a delicate balance between competing and more often than not, conflicting demands of justice where liberty of an individual is pitted against the larger interest of the society. In such cases, the need for specific supervision of the juvenile and wider need to convert the juvenile into a healthy adult by giving him professional counseling and behavioral therapy under the scheme of the Act cannot be underestimated. Moreover, it may be necessary to keep him away from the company of elements, which he previously had.

Considering all the above facts and circumstances of the matter, I concur with the conclusions arrived at by the Appellate Court and by the Juvenile Justice Board and am of the opinion that the revisionist is not entitled to bail,” the Court observed while dismissing the petition.

“Subject to orders of the Juvenile Justice Board, in this regard, the District Probation Officer shall sincerely attend to his duties as assigned to him in Rule 64 of Juvenile Justice (Care and Protection) Model Rule, 2016 and prepare individual care plan, if need arises; likewise person in charge of child care institution shall provide care and protection to the child as per scheme of the Act,” the order reads.

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