JJ Act | Enquiry U/S 15 By Juvenile Justice Board Not Mandatory Before Consideration & Grant Of Bail U/S 12: J&K&L High Court

A bench comprising Justice MA Chaudhary observed:

"The primary assessment of a child in conflict with law is for further purpose of trial i.e., as to whether he should be tried by the Juvenile Justice Board or by the Children's Court. It will not curtail the power of the Juvenile Justice Board to consider the application filed under Section 12 of the J.J.Act, 2015"

The bench was hearing a revision petition moved in terms of Section 102 of the Juvenile Justice (Care and Protection of Children) Act, 2015, seek setting aside the judgment passed Principal Sessions Judge, Kulgam whereby the order passed by the Juvenile Justice Board, Kulgam, granting interim bail to the petitioners under Section 12 of Juvenile Justice Act, 2015 (supra), was set aside.

In their plea the petitioners had assailed the said bail cancellation order on the ground that the Appellate Court re-wrote Section 12 which is otherwise unambiguous and clear regarding bail to be mandatorily granted to the juveniles in conflict with law. The petitioners had further averred neither clause (e) of Sub Section 3 of Section 8 nor Section 15 nor Section 18 (3) of the JJ Act provides and indicates that the law laid down in the said provisions is to be followed for consideration of bail application under Section 12.

Adjudicating upon the matter the bench observed that Sec 12 of the JJ Act clearly authorizes the Juvenile Justice Board to consider bail plea, notwithstanding anything contained in the Code of Criminal Procedure, 1973 or in any other law for the time being in force, and to release a juvenile on bail with or without surety or to place under the supervision of Probation Officer or under the care of any fit person.

This provision of bail seems to be the rule with only exceptions that such person shall not be so released if there appears reasonable grounds for believing that the release is likely to bring that person into association with any known criminal or expose the said person to moral, physical or physiological danger or his release would defeat the ends of justice, and in that case the Board has to record the reasons for denying the bail and the circumstances that led to such a decision, the bench underscored.

Dismissing the observation of the subordinate court while discussing Section 8 of the Act, 2015 that the legislature intended that the denial or grant of bail to the juveniles should be based on the overall appreciation of conditions of the person who is apparently a child, alleged to have committed a non-bailable offence, and this appreciation has to be based on social investigation done by the Probation Officer or some Child Welfare Officer or a Social Worker, the bench observed that the idea underlying for obtaining social investigation report is meant to ensure the safety, security and reform of the said child, than to punish him, which of-course is the purpose and purport of the Juvenile Justice Act.

Discarding another observation of the trial court in invoking section 15 of the JJ Act the bench observed that Section 15 of the Act has been envisaged for deciding as to whether the trial of a juvenile, who is of 16 years age or above and found to be mentally and physically mature to commit a crime, by a Juvenile Justice Board or by the Children court, and this provision cannot be read with the provisions of Section 12 of the Act with regard to consideration of bail without making any reference to Section 15.

"The primary assessment of a child in conflict with law is for further purpose of trial i.e., as to whether he should be tried by the Juvenile P a g e | 16 Justice Board or by the Children's Court. It will not curtail the power of the Juvenile Justice Board to consider the application filed under Section 12 of the J.J.Act, 2015. The Board, however, even after deciding the bail application under Section 12 of the J.J.Act, is under obligation to pass necessary orders under Sections 14, 15 and 18 of the J.J.Act, 2015."

Delving deep into the issue the bench further observed 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 J.J. 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, the bench noted.

Having regard to the afore-stated reasons, the Court was of considered opinion that the juveniles in conflict with law are entitled to be released on bail, as a rule, in terms of Section 12 of the J.J.Act, notwithstanding the gravity of the offence, the preliminary assessment as envisaged in terms of Section 15 of the Act and the difference of age below or above 16 years, the bench concluded.

Case Title: Zubair Ahmad Teli vs UT of J&K.

Citation: 2022 LiveLaw (JKL) 79

Click Here To Read/Download Judgment