Juvenile Being Tried As Adult No Bar To Grant Of Bail U/S 12 JJ Act: Bombay High Court

Section 12 mandates bail or release of a child in conflict with law irrespective of provisions of the CrPC with or without sureties unless his "release is likely to bring that person into association with any known criminal or expose the said person to moral, physical or psychological danger or the person's release would defeat the ends of justice."

Merely because, he is directed to be tried as an adult, he cannot be denied the benefit of Section 12, Justice Bharati Dangre said.

The court aside the Children's Court order refusing bail to a 17-year-old on the ground that the juvenile was being tried as an adult in a serious case of murder and therefore cannot avail of the benefit under S12 of the JJ Act.

Facts

The prosecution alleged that the applicant along with another friend stabbed a man with a glass piece, killing him. The JJB held that in view of section 15 of the JJ Act, since the juvenile was over 17 years and 11 months at the time of the incident and had committed a heinous crime, he must be tried as an adult.

Section 15 of the JJ Act permits the JJB to send a minor aged between 16 and 18 to face trial as an adult if the crime is heinous, after conducting a preliminary assessment of the child's mental and physical capacity to commit such an offence and ability to understand its consequences.

The Children's court that conducts trials against such children rejected his bail application observing that he could not benefit from section 12, after which he approached the HC. The prosecutor submitted that Section 12 of the Act cannot help the accused, as he is directed to be tried as an adult by the Sessions Court.

Observations

Justice Dangre relied on two judgements from 2021 and 2020 to hold that since JJ Act is a special legislation it would override provisions of the CrPC and the accused would be entitled to the benefits of section 12.

The judgements are Sandeep Ayodhya Prasad Rajak and also in the case of Prasad Subhash Khade Vs. State of Maharashtra (Bail Application No.1647 of 2020 decided on 18/03/2022).

"Reading of Section 12 makes it imperative to release the applicant, who is alleged to have been committed bailable or non-bailable offence and this power has to be exercised notwithstanding anything contained in the Code of Criminal Procedure... It is not in dispute that the applicant is a child at the time of commission of offence and would fall within the meaning of 'child in conflict with law', as defined in the Act of 2015."

Regarding the case at hand the court relied on the Probation Officers report which recorded that the CCL (child in conflict with law) had committed the offence under the infuence of the drugs and in the fit of anger, that he didn't intend to kill.

Moreover, the accused was a standard 10 dropout earning some money for himself. The accused was learning carpentry work and feedback from the teacher is positive, the court noted.

"JJ Act focuses on a principle of presumption of innocence and on the principle of best interest as well as principle of repatriation and restoration, by virtue of which, the applicant, who is a juvenile, has a right to be reunited with his family at the earliest and to be restored to the same socio-economic and cultural status that he was in, before coming under the purview of this Act, unless such restoration and repatriation is not in his best interest," the court said.

Case Title: Shubham @ Bablu Milind Suryavanshi Versus The State of Maharashtra

Citation: 2022 LiveLaw (Bom) 416 

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