Section 12 Juvenile Justice Act And Not CrPC Would Be Applicable While Considering Bail Application Of Child Even If He Is Ordered To Be Tried As Adult: Karnataka HC

The High Court was considering a bail plea of a boy accused of impregnating his minor sister. The Accused booked under Sections 376, 376(2)(f), 376(2)(n) and 376(3) of IPC and Sections 4, 5(j)(ii), 5(n), 5(l) and 6 of the Prevention of Children from Sexual Offences Act, 2012 (POCSO Act) sought regular bail under Section 439 of Cr.P.C.

The Single-Judge Bench of Justice S Vishwajith Shetty said, “Petitioner's application which was filed under Section 439 of Cr.P.C. before the Special Court was required to be considered as if it is an application under Section 12 of the Act of 2015. Failure to do so has resulted in miscarriage of justice and petitioner's right to liberty has been effected.”

Senior Advocate Sri Praveen represented the petitioner while HGCP M. Diwakar Maddur represented the respondents.

The victim girl, aged about 13 years, had visited the District Government Hospital and it was found that she was five months pregnant. On enquiry, she stated that the petitioner, who is her brother, was the cause for her pregnancy. Based on the report submitted by the first informant, an FIR was registered against the petitioner.Since the petitioner was a minor at the time of arrest, he was produced before the Juvenile Justice Board and remanded to Observation Home. His bail application was filed before the Board under Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015 which was rejected by the Board.

Thereafter, an order was passed under Section 18(3) and the case was referred to Children Court/Sessions Court to conduct trial against petitioner as an adult though he was a child within the meaning of Section 2(12) of the Act of 2015. Thereafter, the case was referred to the Special Court constituted under the POCSO Act and a case was registered against the petitioner. In the said case, petitioner had filed an application seeking regular bail but the same was dismissed. Aggrieved thereby, the petitioner approached the High Court.

For the petitioner, the Amicus contended that though the order was passed against the petitioner under Section 18(3), to hold a trial against him as an adult, for the purpose of bail of the petitioner, who is a child, Section 12 of the Act is applicable and subject to the proviso to sub-section (1) of Section 12 of the Act of 2015, the child is required to be released on bail.

On the contrary, the HGCP submitted that the petitioner has committed a heinous offence on the minor victim girl who is his sister. As a result of the act committed by the petitioner, victim got pregnant and subsequently, she has delivered a child.

At the outset, the Bench noted, “It is not in dispute that the petitioner is a child within the meaning of Section 2(12) of the Act of 2015.”

Section 12(1) of the Act provides that notwithstanding anything contained in the Code of Criminal Procedure, 1973, or any other law for the time being in force, a child, who is produced before the Board, shall be released on bail subject to proviso to Section 12(1) of the Act of 2015. It was further noticed that the nature of crime committed by the petitioner was not likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger. There was no such report available on record which suggested that the petitioner was likely to be exposed to moral, physical and psychological danger. The victim girl and her parents did not apprehend any danger from the petitioner and they had appeared before the Special Court and stated that they had no objection for enlarging the petitioner on bail.

Referring to section 12, the Bench further held that the only embargo in not releasing a child on bail is that there appears a reasonable ground that his release is likely to bring him into any association with any known criminal or expose him to moral, physical or psychological danger or that release of such a person would defeat the ends of justice. In such circumstances, the Bench opined that the disentitlement categories contemplated in the proviso to Section 12(1) would not come in the way of the petitioner's application.

“Therefore, it is very clear that even if the child is ordered to be tried as a adult, as provided under Section 18(3) of the Act of 2015, for the purpose of his bail application, Section 12 of the Act of 2015 would be applicable and his bail application cannot be considered under the provisions of Code of Criminal Procedure”, the Bench clarified.

The Bench also noticed that the child born to the victim girl was given in adoption and the adoptive parents of the child born to the victim also had refused to give bloodsample of the child for the purpose of DNA Test.

Observing that the he trial in the case is yet to commence, the prosecution has in all cited22 charge sheet witnesses and the petitioner is being tried as an adult for the alleged offences, the Bench held that the petitioner's application which was filed under Section 439 of Cr.P.C. before the Special Court was required to be considered as if it was an application under Section 12 of the Act of 2015.

Thus, allowing the petition,the Bench ordered the petitioner to be released on bail after executing a personal bond for a sum of Rs 50,000 with one surety.

Cause Title: XXX vs. State [Neutral Citation: NC: 2024:KHC:43235]

Appearance:

Petitioner:Senior Advocate Sri Praveen & Amicus Curiae Lethif B

Respondent:Amicus Curiae Lethif B and HGCP M. Diwakar Maddur