Juvenile Justice Act : Grant Of Bail The Norm, Says P&H HC While Reprimanding JJB Head For 'Uncaring, Inept' Denial of Bail [Read Order]

The Punjab and Haryana High Court on Monday rapped the Presiding Officer of a Juvenile Justice Board, stating that an "uncaring and inept discharge of functions" by judicial officers entrusted with the duty of giving effect to a "welfare legislation" would defeat the very purpose of constituting such Boards.

Displeased at a "mechanical" refusal of regular bail to a minor boy in a matter where even the main accused stood acquitted, the High Court went to the extent of requiring the concerned Administrative Judge "for taking necessary remedial action, as deemed fit, for improving the standard of functioning of the Principal Magistrate concerned".

The petitioner before the Court, a minor aged 17 years, had filed the revision assailing the order dated 18.03.2020 of the Principal Magistrate, Juvenile Justice Board, Gurdaspur, whereby his bail application was dismissed. The petitioner was one of the two accused in a August, 2019 FIR registered under Sections 363, 366, 376, 506, 34 and 120-B IPC along with Sections 4 and 6 of the POCSO Act, 2012. According to the prosecution, on 21.08.2019, the petitioner and the co-accused, covered their faces with handkerchiefs and abducted the victim-girl. The petitioner was alleged to have stood guard while the co-accused raped the victim-girl. The petitioner was arrested on 30.08.2019 and remained confined in the Special Home at Gurdaspur since then. He applied for grant of regular bail before the Juvenile Justice Board, Gurdaspur, and suffered the dismissal order dated 18.03.2020.

Justice Sanjay Kumar of the High Court, noted that "significantly", the co-accused of the petitioner, who allegedly committed the actual offence, stood trial before the Additional Sessions Judge, Gurdaspur, and by judgment dated 03.03.2020, "he was acquitted of all charges" on the ground that the prosecution had "failed to discharge the requisite onus beyond reasonable doubt".

"The powers, functions and responsibilities of the Board, prescribed under Section 8 of the Act of 2015, and the tone and tenor of Section 12 thereof, which deals with grant of bail to a child in conflict with the law, manifest in no uncertain terms the duty cast upon the Juvenile Justice Board to implement the letter of the law in true spirit, keeping in mind the ultimate interests of the child", the bench further observed, iterating that Section 12 of the Act of 2015 makes it clear that grant of bail to the child in conflict with the law should be the norm and the proviso thereto requires denial of such bail only if release of the child is likely to bring him or her into association with known criminals or expose him/her to moral, physical or psychological danger or defeat the ends of justice.

"Section 12 of the Act of 2015 makes it clear that grant of bail to the child in conflict with the law should be the norm and the proviso thereto requires denial of such bail only if release of the child is likely to bring him or her into association with known criminals or expose him/her to moral, physical or psychological danger or defeat the ends of justice".

Justice Kumar pulled up the concerned Principal Magistrate for "lackadaisically" recording that there were reasonable grounds to believe that if the petitioner was released on bail, it was likely to bring him into association with a known criminal or expose him to moral, physical or psychological danger, and that his release would defeat the ends of justice.

Reprimanding the Magistrate for "this mechanical reproduction of the legal provision", the bench minced no words in calling it a "mere lip service by the learned Principal Magistrate to the legal requirement" which was to "no avail".

The Single Judge expressed "utmost surprise" that after referring to the acquittal of the co-accused thus, the Principal Magistrate, Juvenile Justice Board, Gurdaspur, opined that "the petitioner had remained present at the spot while the heinous offence of rape was committed by the co-accused!".

"To add insult to injury, the concluding part of the order states to the effect that the evidence of the prosecutrix was yet to be recorded in the case!!", exclaimed the Single bench, sternly pointed out that he, having referred to the acquittal of co-accused in the order, contradicted himself thereafter by saying that the evidence of the prosecutrix was yet to be recorded.

Observing that if the Principal Magistrate was made aware of the fact that the co-accused had already been acquitted, as recorded by him in page-2 of the order, Justice Kumar stated he could not have made these mistakes in the concluding paragraph.

"These errors also demonstrate the level of application of mind by the learned Principal Magistrate. These contradictions in the order speak for themselves and the inevitable inference that needs to be drawn from them reflects very poorly upon the judicial officer concerned", rebuked the High Court.

Moreover, the Single Judge found it "shocking to note" that the Magistrate did not even refer to the extant enactment viz. The Juvenile Justice (Care and Protection of Children) Act, 2015, but mentioned the Juvenile Justice Act, 2000, which stood repealed thereby.

The bench stated that the very constitution of a Juvenile Justice Board, headed by a Metropolitan Magistrate with at least three years experience, is with the intention that such an experienced judicial officer, assisted by two social workers, would be conscious of their pious duty to ensure protection of the rights of juveniles.

Justice Kumar, in his order, employs harsh terminology in commenting that "this is not the level of care or the approach expected of a Magistrate heading a Juvenile Justice Board".

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