Bail for Juveniles – Keeping children out of custody

Bail for Juveniles – Keeping children out of custody

Author: Parul Sardana
III Year | Banasthali Vidyapeeth University

Introduction:

Crime can happen at any age. In India, we have a special legislation dealing with crimes committed by persons below the age of 18 years. Children, i.e., individuals under the age of eighteen years, who commit crimes are termed as ‘Juveniles’ under the Section 2 (k) of the Juvenile Justice (Care and Protection of Children) Act, 2000[1].

Generally, children at this age are amenable and can be easily manipulated. So, anyone can misuse their naivety for the commission of any crime.

In India, till now there has been a lot of confusion regarding the applicability of provisions regarding bail for juveniles. This confusion is because of a number of varying decisions by the courts. Consequently, there isn’t any particular ruling/judgment to state the position of bail in the case of juveniles. Thus, there is a lot of flux regarding the interpretation of the Act regarding the provision of bail as different benches of court have different views.

This article analyses such different views with the help of prominent case law. It also sheds light on the applicable law related to bails for juveniles.

Juvenile Justice Act in India:

This Act, enacted in 1986, is a development and reform in the law. Further, it was amended in the year 2000 as the Juvenile Justice (Care and Protection of Children) Act, 2000[2]. Juvenile Justice (Care and Protection of Children) Act, 2015[3] replaced the 2000 Act as well.

The Act emphasizes the fact that there is a difference between an adult and a child in the level of knowledge, decision-making power, and maturity. Consequently, both should be treated differently.

Section 12 of The Juvenile Justice Act, 2000:

Legal provisions regarding the bail of juveniles are provided under Section 12 of the Juvenile Justice (Care and Protection of Child) Act, 2000[4].

Section 12 of the Act states that when any person accused of a bailable or a non-bailable offense and apparently a juvenile, is arrested or detained or is brought before a board then irrespective of the accusation he shall be released on bail or placed under the supervision of a probation officer or under the care of any fit institution or fit institution[5].

Further, section 12 (1) states that any juvenile accused of any offense can be released on a bail.

In short, a child who commits any bailable or a non-bailable offence should be released on bail. As a result, bail has become a matter of right for the juveniles, irrespective of how serious the offence is. However, there is an exception to this general rule as well[6].

Exceptions for Bail for Juveniles:

The exception being, that child would not be released if there are grounds to believe that the child so released may have an association with any criminal. Moreover, if he maybe exposed to moral, physical, or psychological danger. Also, the bail would defeat the end of justice.

Thus, a juvenile can not be released if there are sufficient grounds to believe that his release would hamper the principles of justice. As a result, this subjective criterion provides grounds for varied interpretations by the judiciary.

Important rulings related to Juvenile offenders:

Madhya Pradesh High Court:

MP High Court was of the view that refusal to grant bail to juveniles will be against the intention of the Juvenile Justice Act.[7]

On 22 May 2020, the case of Rahul Parihar vs The State of Madhya Pradesh[8] came up before the Madhya Pradesh High Court. In this case, the court had ordered the juvenile to apply for bail before the Juvenile Justice Board (JJB).

Punjab and Haryana High Court:

Punjab and Haryana High Court were of the view that ‘it is the rule’ to grant bail to a juvenile[9]. Thus, the nature of the offence should not be taken into consideration while deciding the application for bail for the juveniles.

Delhi High Court:

The Delhi High Court said that no application is needed for the release of the juvenile offender. It also upheld the dictum of bail. Further, the court also said that it is the discretion of the board on how long they want to keep the child[12].

Supreme Court:

In the case, Re Exploitation of Children in Orphanages in The State of Tamil Nadu vs The Union of India[10], the amicus curiae pointed out two instances in Delhi and Uttar Pradesh where children were tortured by police officials while being detained in police custody. A bench comprising of Justice Deepak Gupta and Aniruddha Bose declared that “no child should be kept in jail’’[11]. Thus, a juvenile cannot be kept in jail, even if bail is not granted. The reason being the incidents of custodial torture on children by the Police.

As a result, the Supreme Court also declared that the JJB must see that all juveniles are granted a bail.

Legal Provision of Various Acts dealing with Juveniles:

Section 437 of the Criminal Procedure Code, 1973[13]:

This section says that any child who is having a conflict with the law can apply for anticipatory bail. For instance, the Kerala High Court was of the view that a child has all the rights to apply for anticipatory bail and the bail will be maintainable at the instance of the High Court or the Court of Sessions.

Section 82 of Indian Penal Code[14]:

This section embodies that nothing done by a child, under 7 years of age, can be considered an offence.

Section 83 of the Indian Penal code[15]:

This section states that nothing, done by a child, above 7 but below 12 years of age, can be considered an offence.

Conclusion:

The Juvenile Justice (Care and Protection of Children) Act, 2000 is a step towards rehabilitating juvenile offenders in India. But it lacks in some provisions, especially regarding the bail. Moreover, there is no proper authority to deal with bail matters. Thus, there is a dire need to revisit and amend the said Act. As crimes related to juveniles are increasing at a very fast pace, therefore, India needs good legislation to deal with the growing concern.


[1] Section 2 (k) in The Juvenile Justice (Care and Protection of Children) Act, 2000, INDIAN KANOON, (March 28th, 2021, 4:31 PM) URL: https://indiankanoon.org/doc/404852/

[2] Juvenile Justice (Care and Protection of Children) Act, 2000, ADVOCATEKHOJ, (March 28th, 2021, 4:36 PM) URL: https://www.advocatekhoj.com/library/bareacts/juvenile/index.php?Title=Juvenile%20Justice%20(Care%20and%20Protection%20of%20Children)%20Act,%202000

[3] Juvenile Justice (Care and Protection of Children) Act, 2015, CARA, (March 28th, 2021, 4:37 PM) URL: http://cara.nic.in/PDF/JJ%20act%202015.pdf

[4] The Juvenile Justice (Care and Protection of Children) Act, 2000, INDIAN KANOON, (March 28th, 2021, 4:38 PM) URL: https://indiankanoon.org/doc/1542339/

[5] Section 12 of the Juvenile Justice Act 2015: Bail of Juvenile [Case Laws], DT LEGAL, (March 28th, 2021, 4:30 PM) URL: https://dtlegal.in/section-12-of-juvenile-justice-act/#page-content

[6] Section 12 (1) in The Juvenile Justice (Care and Protection of Children) Act, 2000, INDIAN KANOON, (March 28th, 2021, 4:41 PM) URL: https://indiankanoon.org/doc/1582150/

[7] Refusal of Bail to Juvenile may go against intention of the Juvenile Justice Act says MP High Court, INDIA LEGAL, (March 28th, 2021, 4:44 PM) URL: https://www.indialegallive.com/constitutional-law-news/courts-news/refusal-of-bail-to-juvenile-may-go-against-intention-of-the-juvenile-justice-act-says-mp-high-court

[8] Rahul Parihar vs The State of Madhya Pradesh Cr. R. No. 1121/2020

[9] Saurabh Malik, Punjab and Haryana High Court: Bail to juvenile the rule, barring rarities, THE TRIBUNE, (March 28th, 2021, 4:53 PM) URL: https://www.tribuneindia.com/news/haryana/punjab-and-haryana-high-court-bail-to-juvenile-the-rule-barring-rarities-114080

[10] Re Exploitation of Children in Orphanages vs The Union of India and Others Writ Petition (Criminal) No. 102 of 2007

[11] Juvenile Justice Board Not to be Silent Spectator, PATH LEGAL, (March 28th, 2021, 5:03 PM) URL: https://www.pathlegal.in/Juvenile-Justice-Board-Not-To-Be-Silent-Spectator-blog-2383811

[12] No Application needed for minor’s bail, it’s JJB’s call: Court, BUSINESS STANDARD, (March 28th, 2021, 5:07 PM) URL: https://www.business-standard.com/article/pti-stories/no-application-needed-for-minor-s-bail-its-jjb-s-call-court-116052500818_1.html

[13] Section 437 in The Code of Criminal Procedure, 1973, INDIAN KANOON, (March 28th, 2021,5:31 PM URL: https://indiankanoon.org/doc/848468/

[14] The Indian Penal CodeSection 82, INDIAN KANOON, (March 28th, 2021, 5:32 PM) URL: https://indiankanoon.org/doc/1530896/

[15] Section 83 in The Indian Penal Code, INDIAN KANOON, (March 28th, 2021, 5:34 PM) URL: https://indiankanoon.org/doc/1703265/

Editor: Pratik Banerjee

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