Juveniles Tried As Adults Cannot Be Deprived Of Their Right To Bail Under Juvenile Justice Act: Uttarakhand High Court

It is extremely vital to note that while ruling on a very significant legal point pertaining to the right of juveniles to bail when tried as adults under the Juvenile Justice Act, the Uttarakhand High Court in a most learned, laudable, landmark, logical and latest oral judgment titled X Vs State of Uttarakhand in First Bail Application No. 273 of 2024 that was pronounced as recently as on 11.06.2024 while extending bail to a juvenile accused in a case registered under Sections 376(3), 506 of the Indian Penal Code (IPC), and Section 5(j)(ii)/6 of the Protection of Children from Sexual Offences Act, 2012 has reaffirmed that juveniles tried as adults cannot be deprived of their right to bail under the Juvenile Justice (Care and Protection of Children) Act, 2015. It must be noted that the case was registered at Police Station of Haldwani in District of Nainital. It was also directed by the High Court that the accused be placed in the custody of his father and be subjected to strict discipline.

It must be also noted here that the Single Judge Bench comprising of Hon’ble Mr Justice Ravindra Maithani directed in no uncertain terms that, “Even if a child in conflict with law is transferred for trial as an adult under Section 18(3) of JJ Act, his bail application shall be entertained under Section 12 of the Act.” It also deserves mentioning here that the 15-year-old rape survivor and her family were living in a rented accommodation where the accused who himself was just 17 years old at the time of crime in 2022 was a neighbour. The girl ultimately identified the accused when she became 6 months pregnant.

At the very outset, we need to note that this remarkable, robust, rational and recent oral judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Ravindra Maithani of Uttarakhand High Court sets the ball in motion by first and foremost putting forth in para 1 that, “Applicant is in judicial custody in Case Crime No.0317 of 2022, under Sections 376(3), 506 IPC and Section 5(j)(ii)/6 of the Protection of Children from Sexual Offences Act, 2012, Police Station-Haldwani, DistrictNainital. He has sought his release on bail.”

Needless to say, the Bench states in para 2 that, “Heard learned counsel for the parties and perused the record.”

To put things in perspective, the Bench envisages in para 3 that, “According to the FIR, the informant along with her family was staying in a rented accommodation. The applicant was also their neighbourer. The applicant used to molest the niece of the informant. The family members of the applicant were told about it, but nothing changed. When it was detected that the victim was pregnant for six months, she revealed that it is the applicant, who established physical relations with the victim 4/5 times, and threatened her to life in case she reveals it to anyone. The victim was 15 years of age.”

As it turned out, the Bench lays bare in para 4 that, “The applicant was a Child in Conflict with Law (“CIL”). He moved an application for bail before the Juvenile Justice Board, Haldwani, Nainital (“JJ Board”), which was rejected on 22.07.2022. It so happened that on 07.10.2022, the JJ Board conducted preliminary assessment under Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (“the Act”) and passed an order that the CIL should be tried as an adult under Section 18(3) of the Act. Thereafter, another bail application was filed by the CIL, where the trial was transferred in the court of Special Judge (POCSO)/Special Judge/Additional District and Sessions Judge, Haldwani, Nainital. By the order dated 28.10.2022, the bail application of the CIL had been rejected. Now the instant bail application has been filed.”

Do note, the Bench notes in para 7 that, “A CIL shall be released on bail irrespective of the offence being classified as bailable or non bailable, subject to the riders, as given in the proviso to sub Section 1 to Section 12 of the Act.”

Be it noted, the Bench notes in para 8 that, “The CIL, in the instant case, was initially produced before the JJ Board. His bail application was rejected by the JJ Board. Thereafter, the JJ Board conducted preliminary assessment under Section 15 of the Act and passed an order that there is a need for trial of the CIL as an adult. It is, thereafter, the trial was transferred to the POCSO court, which further rejected the bail application. The order rejecting the bail by the JJ Board has not been appealed against. Even the order passed by the POCSO court has not been challenged, as such. A fresh bail application has been filed before this Court. But, in view of Section 8(2) of the Act, this Court can entertain this matter as a bail application produced before the JJ Board. Section 8(2) of the Act reads as follows:-

“8. Powers, functions and responsibilities of the Board.—(1) …………………………………………………

(2) The powers conferred on the Board by or under this Act may also be exercised by the High Court and the Children’s Court, when the proceedings come before them under section 19 or in appeal, revision or otherwise.

(3) ………………………………………………………………….”.”

Notably, the Bench points out in para 9 that, “Even after the CIL is transferred for trial as an adult, various precautions have been given under the Act so as to protect the rights of the child. In fact, Section 19(2) of the Act provides that after final order, an individual care plan shall be prepared for such CIL. Section 19(3) of the Act also makes specific provisions in such cases. These sub Sections 19(2) and 19(3) of the Act are as follows:-

“19. Powers of Children’s Court.—(1) ……………………………………………..

(2) The Children’s Court shall ensure that the final order, with regard to a child in conflict with law, shall include an individual care plan for the rehabilitation of child, including follow up by the probation officer or the District Child Protection Unit or a social worker.

(3) The Children’s Court shall ensure that the child who is found to be in conflict with law is sent to a place of safety till he attains the age of twenty-one years and thereafter, the person shall be transferred to a jail: Provided that the reformative services including educational services, skill development, alternative therapy such as counselling, behaviour modification therapy, and psychiatric support shall be provided to the child during the period of his stay in the place of safety.

(4) ………………………………………………………………………

(5) ……………………………………………………………………….”.”

Most significantly, the Bench mandates in para 10 while citing the relevant case laws stating that, “Even if a CIL is transferred for trial as an adult under Section 18(3) of the Act, his bail application shall be entertained under Section 12 of the Act. This view has been consistently discussed and followed in various judgments of various High Courts. In the case of Ccl A Vs State Nct of Delhi, (2020) 10 DEL CK 0155, the Hon’ble Delhi High Court has categorically held that, “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.” The Hon’ble Delhi High Court further observed 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.” Similar views have been expressed in the cases of Siddalinga SN Vs. State of Karnataka MANU/KA/0774/2023, and Shubham Alias Bablu Milind Vs. State of Maharashtra, MANU/MHOR/142201/2022.”

While adding a rider, the Bench stipulates in para 11 that, “The bail to a CIL may be denied if there appear reasonable grounds for believing that his release is likely to bring him into association with any known criminal or expose him to any moral, physical or psychological danger, or his release would defeat the ends of justice.”

Most remarkably, the Bench propounds in para 12 holding that, “The governing principle of the Act is given under Section 3 of the Act that principle of best interest is one of the principles, which provides that all decisions regarding the child shall be based on the primary consideration that they are in the best interest of the child and to help the child to develop full potential. In fact, as per principle (v), the primary responsibility of care, nurture and protection of the child shall be that of the biological family or adoptive or foster parents, as the case may be.”

As we see, the Bench observes in para 13 that, “In the instant case, both the CIL and the victim were neighbourers. The victim has already been examined at trial. After 6 months of pregnancy, the incident could be revealed. The FIR records that 4/5 times, the relationship were established. Both were young. The CIL was 17 years of age, whereas, the victim has stated her age as 15 years. Various questions would find deliberation during trial, which includes whether the relationship were consensual? Whether the parties were in relationship? If for the first time the offence was done, why the victim did not raise any alarm? Where the incident took place? Etc.”

It cannot be glossed over that the Bench notes in para 14 that, “The Social Investigation Report does not reveal anything adverse against the CIL. The CIL was a student at the relevant time studying in class XII. His conduct was good with everyone.”

It is also worth noting that the Bench notes in para 15 that, “Having considered, this Court is of the view that it is a case fit for bail and the CIL deserves to be enlarged on bail.”

Quite naturally, the Bench then holds in para 16 that, “The bail application is allowed.”

Finally, the Bench then aptly concludes by holding and stipulating in para 17 that, “Let the CIL be given in the custody of his father, subject to production of two reliable sureties. The father of the CIL shall also give an undertaking that he shall take care of the CIL and shall not allow him to contact any of the witnesses or their family members. The father of the CIL shall also undertake that he shall also not contact either the witnesses or any of any of their family members.”

All told, we thus see that the Uttarakhand High Court has made it indubitably clear in this leading case that the juveniles who are tried as adults cannot be deprived of their right to bail under the Juvenile Justice Act. It thus merits no reiteration that all the Judges must definitely comply with what the Uttarakhand High Court has held so clearly, cogently and convincingly in this leading case in similar such cases pertaining to the trying of juveniles as adults. There can be just no denying it!

Sanjeev Sirohi, Advocate,

s/o Col (Retd) BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.