Uttarakhand HC Upholds Bail Rights for Juveniles Tried as Adults in POCSO Case

Observing that juveniles tried as adults should not be denied their right to bail under the Juvenile Justice Act, the Uttarakhand High Court (HC) has granted bail to a juvenile accused under sections 376 (punishment for rape) and 506 (criminal intimidation) of the IPC, as well as other sections of the POCSO Act. The HC also ordered that the accused be placed in the custody of his father and subjected to strict discipline.

"Even if a child in conflict with the law is transferred for trial as an adult under section 18 (3) of the JJ Act, his bail application shall be entertained under section 12 of the Act," stated Justice Ravindra Maithani in the order issued on June 11.

The 15-year-old rape survivor and her family lived in rented accommodation, where the accused, 17 years old at the time of the crime in 2022, was a neighbor. It was alleged that the accused sexually assaulted the minor girl several times and threatened her to remain silent. The girl identified the accused when she became six months pregnant.

The accused initially sought bail from the Juvenile Justice Board (JJ Board) in Nainital, but it was dismissed. Following a preliminary assessment under section 15 of the JJ Act (2015), the JJ Board decided that the accused should be tried as an adult. The subsequent bail application by the accused before the special judge (POCSO) in Nainital was also dismissed.

Counsel for the accused argued that his client had a spotless record, exhibited exemplary behavior in the observation home, and was actively engaged in academic pursuits. Additionally, the defense raised concerns about the reliability of the DNA examination results.

The HC reviewed provisions of the JJ Act, particularly section 8 (2), which allows the HC to address bail applications submitted before the JJ Board.

The court emphasized the importance of protecting the rights of juveniles, even when they are tried as adults, as mandated by the JJ Act.

The Law's Associated

Juvenile Justice Act 2015

Section 8. Powers, functions and responsibilities of the Board.

(1) Notwithstanding anything contained in any other law for the time being in force but save as otherwise expressly provided in this Act, the Board constituted for any district shall have the power to deal exclusively with all the proceedings under this Act, relating to children in conflict with law, in the area of jurisdiction of such Board.

(2) The powers conferred on the Board by or under this Act may also be exercised by the High Court and the Childrens Court, when the proceedings come before them under section 19 or in appeal, revision or otherwise.

(3) The functions and responsibilities of the Board shall include--

(a) ensuring the informed participation of the child and the parent or guardian, in every step of the process;

(b) ensuring that the childs rights are protected throughout the process of apprehending the child, inquiry, aftercare and rehabilitation;

(c) ensuring availability of legal aid for the child through the legal services institutions;

(d) wherever necessary the Board shall provide an interpreter or translator, having such qualifications, experience, and on payment of such fees as may be prescribed, to the child if he fails to understand the language used in the proceedings;

(e) directing the Probation Officer, or in case a Probation Officer is not available to the Child Welfare Officer or a social worker, to undertake a social investigation into the case and submit a social investigation report within a period of fifteen days from the date of first production before the Board to ascertain the circumstances in which the alleged offence was committed;

(f) adjudicate and dispose of cases of children in conflict with law in accordance with the process of inquiry specified in section 14;

(g) transferring to the Committee, matters concerning the child alleged to be in conflict with law, stated to be in need of care and protection at any stage, thereby recognising that a child in conflict with law can also be a child in need of care simultaneously and there is a need for the Committee and the Board to be both involved;

(h) disposing of the matter and passing a final order that includes an individual care plan for the childs rehabilitation, including follow up by the Probation Officer or the District Child Protection Unit or a member of a non-governmental organisation, as may be required;

(i) conducting inquiry for declaring fit persons regarding care of children in conflict with law;

(j) conducting at least one inspection visit every month of residential facilities for children in conflict with law and recommend action for improvement in quality of services to the District Child Protection Unit and the State Government;

(k) order the police for registration of first information report for offences committed against any child in conflict with law, under this Act or any other law for the time being in force, on a complaint made in this regard;

(l) order the police for registration of first information report for offences committed against any child in need of care and protection, under this Act or any other law for the time being in force, on a written complaint by a Committee in this regard;

(m) conducting regular inspection of jails meant for adults to check if any child is lodged in such jails and take immediate measures for transfer of 1[that child to an observation home or place of safety, as the case may be]; and

(n) any other function as may be prescribed.

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India Code

Section 12. Bail to a person who is apparently a child alleged to be in conflict with law.

(1) When any person, who is apparently a child and is alleged to have committed a abailable or non-bailable offence, is apprehended or detained by the police or appears or brought before a Board, such person shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law for the time being in force, be released on bail with or without surety or placed under the supervision of a probation officer or under the care of any fit person:

Provided 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 psychological danger or the persons release would defeat the ends of justice, and the Board shall record the reasons for denying the bail and circumstances that led to such a decision.

(2) When such person having been apprehended is not released on bail under sub-section (1) by the officer-in-charge of the police station, such officer shall cause the person to be kept only in an observation home 1[or a place of safety, as the case may be] in such manner as may be prescribed until the person can be brought before a Board.

(3) When such person is not released on bail under sub-section (1) by the Board, it shall make an order sending him to an observation home or a place of safety, as the case may be, for such period during the pendency of the inquiry regarding the person, as may be specified in the order.

(4) When a child in conflict with law is unable to fulfil the conditions of bail order within seven days of the bail order, such child shall be produced before the Board for modification of the conditions of bail.

Section 15. Preliminary assessment into heinous offences by Board.

(1) In case of a heinous offence alleged to have been committed by a child, who has completed or is above the age of sixteen years, the Board shall conduct a preliminary assessment with regard to his mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence, and may pass an order in accordance with the provisions of sub-section (3) of section 18:

Provided that for such an assessment, the Board may take the assistance of experienced psychologists or psycho-social workers or other experts.

Explanation.—For the purposes of this section, it is clarified that preliminary assessment is not a trial, but is to assess the capacity of such child to commit and understand the consequences of the alleged offence.

(2) Where the Board is satisfied on preliminary assessment that the matter should be disposed of by the Board, then the Board shall follow the procedure, as far as may be, for trial in summons case under the Code of Criminal Procedure, 1973 (2 of 1974):

Provided that the order of the Board to dispose of the matter shall be appealable under sub-section (2) of section 101:

Provided further that the assessment under this section shall be completed within the period specified in section 14.

Source: https://www.google.com/amp/s/timesofindia.indiatimes.com/city/dehradun/juveniles-tried-as-adults-cannot-be-denied-bail-hc/amp_articleshow/111010025.cms

JJ Act