Ori HC │ Children in Conflict with Law: JJ Act distinguishes between children below and above 16 years of age with regard to enquiry but not for the purpose of bail

Orissa High Court: Savitri Ratho J. released the appellant on interim bail for a period of four months to the satisfaction of the Court in seisin of the case.

The facts of the case are such that on 13.10.2019 at about 8 P.M. the appellant entered the house of the informant and abused him in obscene language and assaulted his son Pintu Naik by means of a Bhujali causing bleeding injuries. When the informant protested he was assaulted with fist blows and kicks for which he fell down. The appellant also took away some articles from his house. Pintu Naik succumbed to his injuries while undergoing treatment at MKCG MCH Berhampur. A case was registered under Sections 302/294/323/324/34 of Penal Code, 1860 i.e. I.P.C and he was arrested. An appeal for bail was filed before Presiding Officer (Children Court), Ganjam, Berhampur which was thereby dismissed. Aggrieved by the same, instant appeal was filed under Section 101 (5) of Juvenile Justice (Care and Protection of Children) Act 2015 (i.e. “the JJ Act”).

Counsel for the appellant Mr. S. K. Mohanty submitted that the CICL i.e “Children in Conflict with Law” is aged about 17 years old and is detained in the observation home since more than one and half years and charge sheet has been filed in the meanwhile. He further submits that the CICL has no criminal antecedents and his release is necessary in view of his age and in view of the mandate of Sec 12 of the JJ Act and in view of the risk posed by the Covid-19 pandemic.

Counsel for the respondent Mr. Saswata Pattnaik opposed the prayer for bail stating that the appellant was aged more than 17 years on the date of occurrence and will be treated as an adult and tried by the Children’s Court.

The main issue before the Court is the grant of bail as the CICL has committed a heinous offence in a pre-planned manner by entering the house of the deceased armed with a sharp cutting weapon and his institutional care is necessary for his reformation which will not be possible if he is released on bail.

The Court relied on judgment Re: Contagion Of  Covid 19 Virus In Children’s Homes, (2020) 15 SCC 280 wherein it was held that

…”In this regard, JJBs and Children’s Courts are directed to proactively consider whether a child or children should be kept in the CCI considering the best interest, health and safety concerns.

These may include:

(i) Children alleged to be in conflict with law, residing in Observation Homes, JJB shall consider taking steps to release all children on bail, unless there are clear and valid reasons for the application of the proviso to Section 12, JJ Act, 2015.

(ii) Video conferencing or online sittings can be held to prevent contact for speedy disposal of cases.”

The Court observed that from a careful reading of Section 12 JJ Act, it is clear that a delinquent juvenile has to be released on bail irrespective of nature of the offence alleged to have been committed by him unless it is shown that if he is released on bail there are reasonable grounds to believe that the release of the CICL is likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice. The nature of offence and the merits of the case do not have any relevance but can be considered to some extent if they are of such a nature as would defeat the ends of justice if the CICL is released on bail.

The Court further observed that a distinction has been carved out among two categories of CICLs –

  • CICLs aged below 16 years and
  • CICLs above 16 years as regards enquiry by the JJ Board or trial by the Children’s Court as per the provisions of Section 15 and Section 18 ( 3) of the Act

but there is no distinction as regards the consideration of their prayer for bail and hence the prayer for bail of both categories of CICLs is to be considered as per the mandate of Section 12 of the JJ Act .

The Court thus held “Considering the nature of allegations against the CICL, the mandate of Section 12 of the Act, the decisions of this Court and the Hon’ble Supreme Court referred to above, absence of the social investigation / background report and in view of the threat of infection and complications posed by the resurgence of Covid 19, I am inclined to release the CICL on interim bail for a period of four months.”

[Nari v. State of Odisha, 2021 SCC OnLine Ori 498, decided on 17-05-2021]

Arunima Bose, Editorial Assistant has put this report together 

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