Raj HC | Taking shield of Supreme Court’s order to take away the vested right of an accused, is nothing short of violating his right of liberty guaranteed under Art. 21; Court allows Bail to juvenile offender

Rajasthan High Court: Dinesh Mehta, J. allowed the revision petition filed setting aside the order dated 10-2-2020 passed by the Principal Magistrate, Juvenile Justice (JJ) Board, Udaipur so also the order dated 17-2-2020, passed by the appellate Court i.e. Special Judge, (Protection of Children from Sexual Offence Act and Child Rights Protection Commission Act, POCSO) No.1, Udaipur, in Criminal Appeal No 8 of 2020.

Swapnil Kalal had filed an FIR on 12-10-2019, intimating that two young boys intercepted him when he had reached Darshan Ghati on his motorcycle and had snatched away his bag containing Rs 62,460 and some important documents, during investigation the police identified the petitioner as one of the accused and had apprehended to try him for the offence under Section 392/34 of Penal Code, 1860.

Considering that petitioner was 17 years of age – a juvenile, he was ordered to be sent to Rehabilitation Center on 30-1-2020. A bail application was filed on petitioner’s behalf by his uncle, which came to be rejected by both the JJ Board and the appellate board, thus the instant petition.

Counsel for the petitioner Bharat Shrimali argued that the offences alleged against the petitioner were triable by magistrate and thus, the JJ Board ought to have enlarged the petitioner on bail considering that he was behind bars for considerable period and that if he had been a major he would have been granted bail by then.

Further, he stated that the charge sheet/final report had not been filed so far, thus petitioner was entitled to be enlarged on bail, as the statutory period for filing charge-sheet had since passed on the other hand the public prosecutor Laxman Solanki, responded that as per Section 12 of JJ Act, the Board was not required to mechanically release a juvenile or grant him bail as a matter of course, merely because the accused before it was a juvenile and in the response of the delay in filing the chargesheet he blamed the lock down and cited the order dated 23-3-2020 passed by the Supreme Court in Suo Motu Writ Petition (Civil) No. 3 of 2020, whereby period of limitation came to be extended considering the situation of overall lock down.

Court while allowing the revision petition upheld the orders under challenge on their merits and stated that there was no reason or material to interfere with the finding recorded by the Board and affirmed by the appellate Court, holding that if the present petitioner – a child in conflict with law was released, there was every likelihood that he will mingle in the company of violators of law and prodded or prompted to commit similar offences.

Further, the Court explained the argument based on failure to file charge sheet and corresponding defence taken by the State-Prosecution and stated that in absence of any amendment in the statute and without there being any remote reference of investigation or provisions of the Code in the order of Supreme Court, taking shield of the Supreme Court’s order to take away the vested right of an accused, is nothing short of violating his right of liberty guaranteed under Article 21 of the Constitution relying on numerous Supreme Court and High Court Judgments held that the petition deserved to be allowed. [Pankaj v. State,  2020 SCC OnLine Raj 867 , decided on 22-05-2020]

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