The Supreme Court has reiterated that a Juvenile has a Right to Parity when an adult offender has already been released on bail for the same offence.
The single-judge bench of Justice Shamim Ahmed while adjudicating upon a Criminal Revision Petition contradicted with the view of Special Judge, POCSO Act whereby it affirmed the JJB decision to not grant the revisionist bail and noted that if adult co-accused has been admitted to bail, there would be no justification to additionally test the case of the Juvenile with reference to the requirements of the proviso to sub Section (1) of Section 12 of the Juvenile Justice Act.
Learned Counsel for the Revisionist submitted that the Revisionist is juvenile and there is no apprehension of reasoned ground for believing that the release of the revisionist is likely to bring him in association with any known criminals or expose him to mental, physical or psychological danger or his release would defeat the ends of justice. He further submitted that except this the revisionist has no previous criminal history. The father of the revisionist is giving his undertaking that after release of the revisionist on bail, he will keep him under his custody and look after him properly. Further, the revisionist undertook that he will not tamper the evidence and he will always cooperate the trial proceedings. There was no report regarding any previous antecedents of family or background of the revisionist. There is no chance of revisionist’s re-indulgence to bring him into association with known criminals.
Citing The State of Haryana & ANR Vs. Kamal Singh Saharwat & Ors, 1999 Latest Caselaw 359 SC, he submitted that the Revisionist has already undergone substantial period of the imprisonment/institutional incarceration and has placed.
On the other hand, Learned AGA Counsel for the opposite party opposed the revisionist's case with the submission that the release of the revisionist on bail would bring him into association of some known criminals, besides, exposing him to moral, physical and psychological danger. It was submitted that his release would defeat the ends of justice, considering that he is involved in a heinous offence.
The Court upon hearing the submissions, noted at the outset that juvenile is clearly below 18 years of age and does not fall into that special category of a juvenile between the age of 16 and 18 years whose case may be viewed differently, in case, they are found to be of a mature mind and persons well understanding the consequences of their actions. It further stated that upon looking into the role of the various accused, it was found that the co-accused who has already been granted bail and the revisionist have identical role.
To this, the Court referred to Dharmendra Kirthal Vs. State of U.P. and another, 2013 Latest Caselaw 521 SC and noted:
"Once the aforesaid co-accused has been admitted to bail, who is adult, there seems no justification to additionally test the case of the revisionist with reference to the requirements of the proviso to sub Section (1) of Section 12 of the Act. In this connection, I had occasion to consider the question about the right of a juvenile to be released on bail where a similarly circumstanced adult offender had been extended that liberty."
The Court also mentioned to State of U.P. Vs. Shiv Kumar & Ors, 2005 Latest Caselaw 264 SC to note that gravity of the offence is not relevant consideration for refusing grant of bail to the juvenile.
In view of the above, the Court opined thar there is no justification to hold the revisionist not entitled to the liberty of bail.
"It is also taken note of by this Court that the revisionist has by now done substantial period of institutional incarceration. The maximum period for which a juvenile can be incarcerated in whatever form of detention, is three years, going by the provisions of Section 18(1)(g) of the Act."
The Court showed displeasure with the impugned order and judgement and noted that both have been passed in a cursory manner without placing due reliance on the report submitted by the District Probation Officer as well as facts and circumstances of the case.
Settind aside both, the Court allowed the appeal.
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