Law Web: Can the court refuse to bail a juvenile above 16 years of age prosecuted for a heinous offence?

It is also necessary to state here that although

a distinction has been carved out among two categories of

CICLs – (i) The CICLs aged below 16 years and (ii) 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 .

ORISSA HIGH COURT

Nari @ Narendra Barik Vrs. State of Odisha

Dated: 17.05.2021

I have heard Mr. S.K. Mohanty, learned counsel for

the appellant and Mrs. Saswata Pattnaik, learned Additional

Government Advocate through Hybrid Mode because of the

Covid 19 pandemic.

This appeal has been preferred under Section 101

(5) of Juvenile Justice (Care and Protection of Children) Act

2015 ( in short “the JJ Act”) challenging the order dated

16.04.2020 passed by the learned Presiding Officer

(Children Court), Ganjam, Berhampur (I/c) in connection

with J.R. Case No.87 of 2019 corresponding to Kodala P.S.

Case No.283 of 2019 registered under Sections

302/294/323/324/34 of I.P.C., dismissing the appeal of the

appellant for bail.

The prosecution allegations in brief are 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.

Learned counsel for the appellant -CICL submitted

that the CICL 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. He has relied on the

decisions rendered by this Court in the case of Re-A

Juvenile -Vrs.- State : (2009) 42 OCR 315 and Kuna -

Vrs.- State : 1993(II) OLR 536 and the decision of the

Hon’ble Supreme Court in Suo Motu Writ Petition (Civil)

No. 4 of 2020 (in Re Contagion on Covid-19 virus in

Children Protection Homes) in support of his prayer for

bail.

Ms. Pattnaik, learned Addl. Government

Advocate vehemently opposes 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. Referring to the statement of the

informant Mochia Nayak and neighbor Karuna Swain she

has further submitted that the appellant had come to the

house of the deceased armed with a knife and stabbed the

deceased causing a number of bleeding injuries which

resulted in his death. He has given recovery of the weapon

of offence-the knife and his blood stained wearing apparel.

Chargesheet dated 12.02.2020 has been filed against the

appellant for commission of offences under Section

302/294/323/ 324/380 I.P.C. She objects to the grant of

bail stating that 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.

In the case of RE A Juvenile vs State : (2009)

42 OCR 315 where the accused was involved in a case

under section – 302 IPC and other sections ,this Court held

that the mandate of section 12 of the JJ Act is that a

juvenile is to be released on bail however heinous the crime

may be and the only restriction is availability of reasonable

grounds that his release is likely to bring him in association

with known criminals or expose him to any moral, physical

or psychological danger or his release would defeat the ends

of justice. Referring to the allegations against the petitioner,

it was held that there was scope of psychological danger if

he was not released on bail and the CICL was granted bail.

The Hon’ble Supreme Court in its decision

rendered in Re: Contagion Of Covid 19 Virus In

Children’s Homes reported in (2020) 15 SCC 280 has

interalia held as follows:-

…”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.”

In the case of Kuna vs State : 1993(II) OLR

536, this Court considered whether the petitioner aged

about 15 years 2 months and 7 days is entitled to benefit

under Section 18 of the Juvenile Justice Act 1986. This

decision is not relevant to this case and should not have

been cited.

This Court in the case of Naresh Naik vs State

: (2008) 41 OCR 553 referred to the ratio in the case of

Abrahim Kristian vs State : 1989( 1) OLR 89 that

release of a juvenile on bail is the rule unless there appear

reasonable grounds for believing that his release is likely to

bring him in association with known criminals or expose him

to moral danger and relying on the favourable report of the

Superintendent Probation Hostel, directed for release of the

juvenile on bail.

In the case of Ashik Kumar Sahu vs State :

(2012) 52 OCR 356, who was an accused in case

registered under section – 376 ( 2) (g) I.P.C , this Court

referring to Section 12 of the Juvenile Justice ( Care and

Protection of Children ) Act , 2000 directed the JCL to be

released on bail.

In the case of Chittaranjan @ Biswajit Sahoo

vs State : 2018 (II) OLR 377 , the CCL had been

chargesheeted for an offence under Section – 306 I.P.C .

Referring to the provisions of section 12 of the Act, it was

held that gravity of the offence is not to be considered but

the circumstances in which the offence was committed and

whether his environment is conducive is to be considered.

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 . But materials

have to be produced by the prosecution to make out any of

the grounds provided in the Section 12(1) of the JJ Act of

2015, in order to persuade the Courts not to release the

CICL on bail. But in this case, the social investigation /

background report is not available in the case diary for

which it is not possible to consider whether the release of

the petitioner is likely to bring him into association with any

known criminal or expose to moral, physical or

psychological danger or that his release would defeat the

ends of justice.