Can Bail Be Granted Under Section 12 Of Juvenile Justice Act To An Adult Accused Of A Crime Committed As A Juvenile? SC To Examine

The Bench, comprising Justices Dinesh Maheshwari and J.K. Maheshwari, granted interim bail to the accused, noting that he had been lodged in a correctional facility for almost five years. However, the maintainability of the bail application needed to be examined at greater length, the Bench noted. Justice D. Maheshwari said –

"What is troubling us is this. The Juvenile Justice Board has taken a final call that the accused is to be tried as an adult. Whether that will be sustained in the next stages of litigation is a different question. But the question is, whether, even if he is to be tried as an adult, the bail application of a child at conflict with law has to be governed by Section 12."

Senior Advocate Manan Kumar Mishra argued that the accused could be granted bail under Section 12 of the Act. However, taking the opposite stand, Additional Solicitor General Vikramjit Banerjee, appearing for the Central Bureau of Investigation, submitted that the application was unmaintainable since the accused could derive the benefit of the specific provision of the Juvenile Justice Act only as a juvenile, and not as an adult. Banerjee vehemently asserted –

"There are three categories – One, where the accused is between sixteen and eighteen years of age, second is where he is above eighteen, in which case, he is no longer eligible. And another category is below sixteen, in which case the accused is considered to be a child in conflict with the law…The reason why Section 12 has limited vigour is that the accused is a child. But, if the person is not a child, this is a very lightweight provision and would not be applicable. "

However, Justice D. Maheshwari said –

"For the purposes of this provision and its proper application, would this consideration not be with reference to the date of the incident? After decades have passed, the issue of juvenility is still taken up, and we are remanding sentences. People are getting relief as well. You are saying…because of this fortuitous circumstance that the clock has ticked by, and the accused has attained majority, therefore, he cannot maintain an application under Section 12."

Justice Maheshwari also hypothesised –

"If the Delhi High Court had taken a decision converse to its current decision, the accused would be tried as a juvenile. Then, would you still say that he is ineligible to apply under Section 12 and must seek bail in the ordinary manner prescribed under the Code of Criminal Procedure?"

The Additional Solicitor-General responded that the decision to try an accused as an adult had no bearing on whether he would get bail under a provision designed for children in conflict with the law –

"This second application was filed when he was above eighteen. Irrespective of whether he was to be tried as an adult, I would have maintained the argument that he could not file for bail under Section 12 and would have to resort to Section 439 of the CrPC…If this Court now interprets this provision to be applicable for people across ages, and de hors this entire dispute, such an interpretation would be unsustainable."

Justice J.K. Maheshwari commented–

"In the peculiar circumstances, where the pendency is because of the judicial process, it cannot operate to the prejudice of any person. Are you suggesting that because of the passage of time, the operation of the provision for bail is barred?"

Banerjee suggested –

"We can cut down the total number of witnesses and ensure an expeditious trial."

Justice J.K. Maheshwari replied –

"That is a different matter."

Justice J.K. Maheshwari then pointed out the universality of the application of Section 12 –

"Up to the age of eighteen, for the purposes of bail, Section 12 applies as per the spirit of the act and the relevant provisions. Only when the offence is heinous, for the purpose of trial and not bail, Section 18(3) will be relied upon."

Banerjee reiterated –

"This would apply only to those who are eighteen years old or younger. On the date of the second bail application, the accused had attained majority."

Justice J.K. Maheshwari pressed on –

"But not on the date on which the offence was allegedly committed by him."

Banerjee responded –

"Whether the accused can also apply after he turned eighteen is something that this Court must decide. If this Court takes the interpretation that the date relates back to when the offence was committed, it would go against the intention of the provision and might create complications in subsequent matters. This Court may decide to look at every situation in a case-by-case manner. But, if this Court formulates an across-the-board rule, then someone who is twenty-one or twenty-four can apply for bail under this section and ask for the Court to apply the light vigour of bail contained in it."

Finally, Justice Dinesh Maheshwari noted –

"Whether a bail application under Section 12 is maintainable or not is a question that we will examine, determine whether it has to go to a three-Judge Bench. At present, we do not know. We are keeping everything open. Section 12 being applicable to him does not ipso facto mean he will get bail. Other hurdles will have to be cleared. We will examine all that."

Granting leave, the bench dictated the order as follows–

"At the admission stage, we have heard the learned counsel for the parties at some length, particularly in view of the question sought to be posed by the petitioner. It has been strenuously argued that the learned counsel for the petitioner that even if it is ordered that the petitioner is to be tried as an adult, yet, insofar as his bail plea is concerned, it has to be examined only in terms of Section 12 of the Juvenile Justice Act, 2015 because of the fact that he was a child within the meaning of Section 12. At the most, he could be said to be a child in conflict with law in terms of Section 2(13) of the said act. Therefore, he is entitled to a consideration of his bail plea in terms of Section 12 of the act.

Per contra, it has been strenuously argued the learned Additional Solicitor-General appearing for the Central Bureau of Investigation that, in any event, for the reason that the petitioner has already attained the age of eighteen years, and is in fact, now twenty-one years of age, his present bail plea cannot be considered with reference to Section 12…

Having taken note of all the facts and circumstances of the case, we have not entered into the merits of the bail plea as such because such consideration would depend on the answer to threshold question as to whether the petitioner is entitled to maintain his bail plea under Section 12. The submissions made in that regard give rise to substantial points to be determined by this Court. It also goes without saying that if the answer to this point is in favour of the petitioner, then his bail plea is considered in terms of Section 12…We are inclined to grant leave in this matter so as to consider the relevant issues appropriately."

On September 8, 2017, the body of a Class II student was recovered with his throat slit inside a washroom at Ryan International School in Gurugram. The Central Bureau of Investigation, after taking over the case from the Haryana Police, exonerated the person who was initially accused and apprehended a Class XI student from the same school. The undertrial accused, who was sixteen at the time of the incident, turned twenty-one this year on April 3. The trial is set to begin on October 31.

Case Title

Master Bholu (Imaginary Name) v. CBI [SLP (Crl) No. 8691/2021]