Even If Child In Conflict With Law Is To Be Tried As Adult, His Bail Application Will Be Considered U/S 12 JJ Act And Not CrPC: Karnataka HC

The Karnataka High Court has said that even if a child in conflict with law is ordered to be tried as an adult, as provided under Section 18(3) of the Juvenile Justice (Care and Protection of Children) Act, 2015, his bail application is to be considered under Section 12 of the Act, it cannot be considered under the provisions of Code of Criminal Procedure.

A single judge bench of Justice S Vishwajith Shetty held thus while allowing a bail petition filed by a minor who is accused of sexually assaulting her minor sister and causing her to become pregnant and who is directed to be tried before a Special Court as an adult.

The court said,

“Section 12(1) of the Act provides that notwithstanding anything contained in the Code of Criminal Procedure, 1973, or any other law for the time being in force, a child, who is produced before the Board, shall be released on bail subject to proviso to Section 12(1) of the Act of 2015. Therefore, it is very clear that even if the child is ordered to be tried as an adult, as provided under Section 18(3) of the Act of 2015, for the purpose of his bail application, Section 12 of the Act of 2015 would be applicable and his bail application cannot be considered under the provisions of Code of Criminal Procedure.”

It added “The only embargo in not releasing a child on bail is that there appears a reasonable ground that his release is likely to bring him into any association with any known criminal or expose him to moral, physical or psychological danger or that release of such a person would defeat the ends of justice.”

The accused is charged for offences punishable under Sections 376, 376(2)(f), 376(2)(n) and 376(3) of IPC and Sections 4, 5(j)(ii), 5(n), 5(l) and 6 of the Prevention of Children from Sexual Offences Act, 2012. He had approached the special court seeking bail under Section 439 of CrPC which came to be rejected. Following which he approached the high court.

Amicus curiae appointed in the case submitted that though order is passed against petitioner under Section 18(3) of the Act of 2015, to hold a trial against him as an adult, for the purpose of bail of the petitioner, who is a child, Section 12 of the Act is applicable and the child is required to be released on bail.

Moreover, the victim girl and her parents had appeared before the Special Court and had submitted that they have no objection for releasing the petitioner on bail. The victim girl and her parents have not cooperated for the DNA Test.

The prosecution opposed the plea saying that the petitioner has committed a heinous offence on the minor victim girl who is his sister. In the event, he is enlarged on bail, he is likely to tamper with the prosecution witnesses.

The bench on going through the records noted that there are three disentitlement categories contemplated in the proviso to Section 12(1) of the Act of 2015, but it would not come in the way of the petitioner's application being considered.

It said, “The nature of crime committed by the petitioner is not likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger. There is no such report available on record which suggests that the petitioner is likely to be exposed to moral, physical and psychological danger. The victim girl and her parents do not apprehend any danger from the petitioner and they have appeared before the Special Court and stated that they have no objection for enlarging the petitioner on bail.”

Noting that the victim girl and her parents have not cooperated for the purpose of DNA Test and the adoptive parents of the child born to the victim also have refused to give blood samples of the child for the purpose of DNA Test, the court said, “The petitioner is in custody from 24.07.2023. The trial in the case is yet to commence. The prosecution has in all cited 22 charge sheet witnesses in the present case and the petitioner is being tried as an adult for the alleged offences. Therefore, the chance of the trial being completed in the near soon is very remote.”

Accordingly it held, “Petitioner's application which was filed under Section 439 of Cr.P.C. before the Special Court was required to be considered as if it is an application under Section 12 of the Act of 2015. Failure to do so has resulted in miscarriage of justice and petitioner's right to liberty has been effected.”

The court allowed the petition and directed release of the accused on executing a personal bond for a sum of Rs.50,000 with one surety for the likesum and other conditions.

Appearance: Advocate Praveen S for Petitioner.

Lethif B, Amicus curiae

HCGP M Diwakar Maddur for R-1 & R-2.

Citation No: 2024 LiveLaw (Kar) 458

Case Title: XXX AND STATE BY WOMEN POLICE STATION & ANR

Case No: CRIMINAL PETITION NO. 9582 OF 2024

Click Here To Read/Download Order