“Section 12 of the Juvenile Justice Act requires bail to be mandatorily granted to the juveniles in conflict with law and grant of bail to such a person is a rule and denial is an exception,” court ordered.
Srinagar: A trial Court at Srinagar on Saturday granted bail to two minors accused of rape under POSCO Act while setting aside the order of Juvenile Justice Board (JJB) denying their bail.
The presiding officer, Aarti Mohan while giving reference to a High Court Judgement in case of Zubair Ahmad Teli & Anr VS UT of J&K and Another, recorded that “The nature of the offence is not one of the factor on which bail may be granted or refused to a juvenile in conflict with law, therefore, bail cannot be denied to a juvenile in conflict with law on the ground of gravity of offence involved.
“ Section 12 of the Juvenile Justice Act requires bail to be mandatorily granted to the juveniles in conflict with law and grant of bail to such a person is a rule and denial is an exception,” court ordered.
She noted from the reference that “The bail can be denied only for exception provided under section 12 of JJ Act that too having regard to the interest of child in conflict with law.”
Mohan explained that section 12 of the JJ Act is a special provision to the exclusion to the Code of Criminal Procedure and there is a mandate by which a child is to be released on bail when he is detained in connection with any offence.
“Infact even where a juvenile is to be tried as a adult , his bail application is still to be required to be considered keeping in view the parameters laid down in section 12 of JJ Act,” she recorded.
In the opinion of this court, the Juvenile Justice Board may be justified in denying bail to a juvenile involved in a heinous crime only if there is material before it to form a prima facie opinion on the aspects carved out as exception to rule of bail in section 12 of the Act itself.
“There must be some mechanism with the Juvenile Justice Board to gather material and form an opinion as to whether the juvenile need to be denied bail by bringing his case under the exceptions to bail engrafted in Section 12. The opinion to be formed by the Board, by no means, can be subjective and has to be objective. Either the prosecution should place some prima facie material before the Board or the Court to show that release of a juvenile on bail may expose him to moral, physical or psychological danger,” court recorded.
Court said that in this case however, the Board has not arrived at the conclusion that release of the minors would defeat the ends of justice on any said principles nor has taken into consideration any of the above factors. It seems to be swayed only by the fact that the minors have been accused of committing an offence under the POCSO Act without analyzing the facts and circumstances of the case.
Moreover, the Board has even failed to consider the Social Investigation Report of the minors wherein nothing adverse has been found against tthem which could compel the Board to conclude that their detention in the Observation Home is in best interest.
“In view of the above, the order passed by JJB Srinagar on 17 May, 2024 is not sustainable and is set aside and the appellants who are in Observation Home are directed to be released on bail on the surety of their fathers to the satisfaction of JJB Srinagar subject to the condition that fathers shall furnish an undertaking that upon release on bail
“The appellants will not be exposed to any moral, physical or psychological danger.”
“That the appellant would be encouraged to take up constructive activities and pursue his education or acquire some skill for his rehabilitation into the society.”
“The Probation Officer would keep a strict vigil on the activities of the minors and likely draw their social investigation report which would be submitted to JJB Srinagar on such periodical basis as the JJB may determine.
The court also said that while going through the order of the Board it transpires that the Board has disclosed the identity of the juveniles.
“The Board is also cautioned against disclosing the name and identity of the juveniles in the order as same violates the right to privacy and confidentiality of the juveniles enshrined in Section 3 of the Act and is also against the mandate of law laid down by the Apex Court,” court said.