RADHIKA (JUVENILE) VS STATE OF U.P., 2019 SCC OnLine Ori 498

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FACTS OF THE CASE

In the mentioned case, the accused convicted in different offences appealed before the Allahabad High Court after rejection of their Bail Application by the Special Judge, POCSO Act. The first appellant, Radhika (Juvenile), faced charges related to dowry death. The second appellant, Himanshu Alias Dabba, was charged with robbery. The third appellant, Raju @ Raj Kumar, was accused of murder. The fourth appellant, Aqil (Juvenile), faced charges of gang rape. The fifth appellant, Aman, was charged with sodomy on a 10-year-old victim. Another accused, Prince@ Aditya Tiwari, filed a criminal bail application after his first bail application was rejected. When all the appellants claimed that they were juvenile when they committed the offence and further matter came before the JJ Board. Thereafter the Board ordered their trial as adults, leading them to file bail applications before the Children’s Court. Since there were no Children’s Courts in the state of U.P. the Special Judge (POCSO) Act acted as a Children’s Court. Subsequently the Special Judge rejected their Bail Applications, therefore the appeals were filed in the High Court under Section 101(5) of the Act, challenging the bail orders.

ISSUES

1. What would be the forum of considering the bail of delinquent juvenile under the scheme of the Act and what would be the factors applied by the court below while releasing them on bail/appeal/revision with regard to delinquent juveniles within the age group of 16-18 years?

2. Whether gravity, depth and seriousness of the offence would be taken into account, while deciding the bail application of juvenile delinquent under the age group of 16 to 18 years?

ARGUMENTS

Appellant: All the Appellants argued that when they committed the offence, they were Juvenile or Child and their Bail Applications were rejected by the Special Judge, POCSO Act. They argued that, to be granted Bail was their matter of right and mandatory according to the Section 12 of JJ, Act.

Respondent:  The Respondent argued that all the delinquent juveniles were above 16 years of age and allegedly committed heinous offenses. They should be tried as adults after an assessment by the board regarding their mental and physical capacity to commit such offenses and their ability to understand the consequences and the circumstances in which they had allegedly committed the offense.

JUDGEMENT

In the aforementioned case, all the appeals were dismissed by the Court. The Court directed the appellants to apply for Bail under Section 12 of the Juvenile Justice (Care and Protection) Act, 2015, which must be decided by the JJ Board within seven days from its filing, as mandated by Section 12(4) of the Act. They should follow the appropriate process outlined in the Act for addressing their grievances.

The Court held that the JJ, Act of 2015 provides a specific procedure for considering bail applications of delinquent juveniles, and any deviation from this procedure is not justified. In the mentioned cases the delinquent offenders, declared juveniles by the Board, applied for regular bail before the Special Judge (POCSO Act). According to Section 15(1) of the JJ, Act when dealing with a heinous offence allegedly committed by a child aged sixteen or above, the Board must conduct an initial evaluation of the child’s mental and physical capacity to commit the offence, their understanding of the consequences, and the circumstances surrounding the alleged offence. Further the Special Judge rejected their bail applications. If the Board determines, after a preliminary assessment under Section 15, that a child should be tried as an adult, they can order the case’s transfer to a Children’s Court with the relevant jurisdiction for such offences. In the State of U.P. there was no such Children’s Court established therefore the J.J Board acted as a Children’s Court in the matter. Then subsequently, the appellants appealed under Section 101(5) of the Act, which contradicts the Act’s scheme and is not valid. 

While determining the gravity, depth and seriousness of the offence committed by a delinquent juvenile age group of 16 to 18, the court highlighted the statement of Objects and Reasons of the legislation while dealing with the Juvenile Justice (Care and Protection) Act, 2015. The Court previously stated that bail should be granted to apparent children under Section 12 of the Act because it uses the word “shall,” indicating a mandatory provision. However, there are certain exceptions if there appear any 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 person’s release would defeat the ends of justice, and the Board shall record the reasons for denying the Bail.

Further these juveniles, who claimed to be involved in serious offences and are over 16 years old, were assessed by the Board. Based on this assessment, they are to be tried as adults under Section 18(3) of the Act. This issue could be resolved by recourse of “object” of the legislation and Para 4 of the Statement of object and reasons. The court also instructed the State Government to appoint a panel of at least six expert psychologists/psycho-social experts in each Commissioner’s Division within six months as there were no such experts. These experts would be utilized by the Juvenile Justice Boards in their respective Divisions to assess delinquent juveniles.

REFERRED

Radhika (Juvenile) vs State Of U.P. on 5 August, 2019 (indiankanoon.org)

This Article is written by Sujata N. Kharad, a student of PES’s Modern Law College, Pune, Intern at Legal Vidhiya.

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