The Punjab and Haryana High Court has said that the bail application of a Juvenile under Section 12 of the JJ Act must be decided after taking into account the Social Investigation Report of the child.
A Single Bench of Justice Suvir Sehgal yesterday passed this order, while granting the bail petition filed by Vishnu.
In this case, the petitioner, who is a child in conflict with the law, has filed the petition through his father, challenging the orders dated January 15, 2021, whereby application for grant of bail under Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015 has been declined by the Principal Magistrate, Juvenile Justice Board, Rohtak and order dated February 2, 2021, passed by Additional Sessions Judge, Rohtak, whereby appeal filed against the said order has been dismissed.
The petition said that on the basis of a complaint filed by one Rajender, an FIR dated May 28, 2020, was registered under Section 201, 302, 34 of the Indian Penal Code and Section 3 (2) (vi) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 on the allegation that Amit alias Neetu and the petitioner have murdered his son Sombir.
During the investigation, the petitioner and the co-accused were apprehended on May 28, 2020, and they admitted their involvement in the homicide in their disclosure statement.
Counsel for the Petitioner has referred to the challan and submitted that the date of birth of the petitioner as per the school leaving certificate is September 27, 2014 and being a child in conflict with law, he is entitled to be released on bail under Section 12 of the Act.
He submitted that there are no allegations qua the petitioner of having committed any offense under the SC & ST Act. According to him, the accusation against the petitioner is that he caught hold of the deceased and inflicted injury on him with a wooden stick.
Opposing the petition, the State Counsel, who is assisted by the Counsel for the complainant, upon instructions from SI Bhagat Singh, submitted that the petitioner inflicted the injury on the head of the deceased and a blood stained wooden stick as well as a motorcycle used in the crime have been recovered from the petitioner.
As per his instructions, challan was presented on July 23, 2020, charges were framed on March 10, 2021 and the trial is fixed for June 3, 2021 for recording of statement of prosecution witnesses though none of the witnesses has appeared in the witness box so far. He submitted that if the Petitioner, is released on bail, there is a likelihood of his coming in contact with criminals.
According to the respondents, an application for re-determining the age of the petitioners is pending before the Trial Court.
“A coordinate Bench of the Court in Vishvas’s case (supra) held that application under Section 12 of the Act cannot be decided without taking into consideration of the Social Investigation Report of a juvenile, submitted by the Probation Officer as per the proforma contained in the rules framed under the Act and other materials available before the Juvenile Justice Board.
“This judgment was delivered after the impugned order had been passed in appeal by the Appellate Court. Though normally the matter should be remanded for fresh decision in the light of the said judgment yet the objective behind the statute has to be kept in mind which provides that a child friendly approach is required to be adopted in the adjudication and disposal of matters in the best interest of children and that the justice delivery system as available for adults is not suitable for being applied to a juvenile or a child in conflict with law,” the Court observed.
Moreover, considering the fact that the petitioner was less than 16 years of age on the date of alleged occurrence and also that he has been in custody for the last more than 1 year, the Court proceeds to examine the Social Investigation Report.
“After noticing the background of the Petitioner, it has been recorded in the report that his relations with his family members, friends, teachers and classmates are cordial. As per the report, the Petitioner, who is a matriculate, comes across as a normal child. It has been further noticed that the Petitioner is neither a member of any gang nor involved in drug peddling nor does he have any criminal past. The reason for the alleged offence has been given as “peer group influence” and the petitioner appears to be physically fit and mentally sound as reported by his family,” the Court said.
The Court stated, “Grant of bail to a child in conflict with law is a rule and rejection of the same is an exception. Section 12 of the Act provides that anything contained in the Code of Criminal Procedure or in any other law for the time being in force, except for the three contingencies, specified in provision to Section 12 (1) of the Act, the grant of bail to a child in conflict with law cannot be declined.
“The Courts have even gone to the extent of holding that neither the gravity of the offence nor the fact that the co-accused are yet to be apprehended is a ground to reject the prayer.”
The Court noted that the respondents could neither show nor refer to any material to explain as to how, in case the petitioner is enlarged on bail, would he be exposed to moral, physical or psychological danger or would come in contact of known criminals.
Mere apprehension of the prosecution without there being any material on record would not be sufficient to decline the prayer for grant of bail. It may also be noticed that in case a juvenile is found guilty and convicted, the maximum period that he can be ordered to spend in a Special Home under Section 18 (1) (f) of the Act is three years, it said.
The petitioner has spent more than one year in incarceration, therefore, no purpose would be served in detaining the petitioner any further.
“Without adverting to the merits of the case at this stage, the petitioner is ordered to be released on bail on his furnishing bail/surety bonds to the satisfaction of the trial Court/Chief Judicial Magistrate/Judicial Magistrate concerned,” the Court ordered.