Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2025 Supreme(KER) 1009

IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.V. KUNHIKRISHNAN, J.
Muhammed Nihal, Son Of Abdul Najeeb – Petitioner
Versus
State Of Kerala, Represented By Public Prosecutor, High Court Of Kerala – Respondent
B.A. No. 10877 of 2024
Decided On : 06-01-2024

Advocates:
Advocate Appeared:
For the Appellant : BY ADVS. C.C.ANOOP AFLAH C.P.
For the Respondent: ADV.SRI.NOUSHAD K.A-SR PP

Bail is the rule and jail is the exception, especially for juveniles, unless statutory exceptions apply.

Headnote:
(A) Bharatiya Nagarik Suraksha Sanhita - Section 483 - Juvenile Justice (Care and Protection of Children) Act, 2015 - Section 12(1) - Bail application for a juvenile accused of heinous crimes - The court emphasized that bail is the rule and jail is the exception, allowing bail under stringent conditions despite the heinous nature of the alleged crime. (Paras 7, 8, 11)

(B) The court reiterated that the denial of bail must be justified under the proviso to Section 12(1) of the JJ Act, and the reasoning provided by the Juvenile Justice Board was found inadequate. (Paras 5, 6, 11)

Facts of the case:
The petitioner, a child in conflict with the law, is accused of committing aggravated penetrative sexual assault and impregnating the survivor. The Juvenile Justice Board rejected the bail application citing the heinous nature of the crime.

Findings of Court:
The court found that the petitioner is entitled to bail under the JJ Act, emphasizing the principle that bail should not be denied without sufficient justification.

Issues: The main issue was whether the nature of the alleged crime justified the denial of bail under the JJ Act.

Ratio Decidendi: The court ruled that the presumption in favor of bail for juveniles must be upheld unless the statutory exceptions apply, and the reasoning for denial must be clearly articulated.

Result: Bail application allowed with conditions.

ORDER :

(P.V. KUNHIKRISHNAN, J.)

This Bail Application is filed under Section 483 of Bharatiya Nagarik Suraksha Sanhita .

2. The petitioner is an accused in crime No. 984/2024 of Wandoor Police Station. The above case is registered against the petitioner alleging offence punishable under Secs. 332(b), 64(1), 64(2)(m) of Bharatiya Nyaya Sanhita, 2023 (for short 'BNS') and Secs.4(1) r/w 3(a), 6(1) r/w 5(j)(ii)(1), 12 r/w 11(iv) of Protection of Children from Sexual Offences (POCSO) Act, 2012.

3. The prosecution case is that, a day in the month of April, 2024, the child in conflict with law (CCL herein) with an intention to sexually assault the survivor, acquainted with her, by sending messages through telegram by pretending love and trespassed into the house of the survivor at Vaniyambalam Poochapoyil and committed aggravated penetrative sexual assault upon her. It is also alleged that, thereafter, he committed repeated rape upon the survivor on different dates and on 02.08.2024 at 12 am and made her pregnant. Hence, it is alleged that the petitioner committed the offences.

4. Heard the learned counsel for the petitioner and the Public Prosecutor.

5. The counsel for the petitioner submitted that the petitioner is admittedly a CCL. He is now in the Government Observation Home for boys. The bail application filed by the petitioner is rejected by the Juvenile Justice Board, Malappuram stating that the offence is heinous. The counsel for the petitioner submitted that, in the light of proviso to Sec. 12 (1) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short 'JJ Act'), the petitioner is entitled bail. The learned counsel submitted that, observation of the Juvenile Justice Board that since it is a heinous crime, the petitioner is not entitled bail, is not correct.

6. The Public Prosecutor opposed the bail application. The Public Prosecutor submitted that the petitioner, even though a minor, committed rape and impregnated the victim. This Court considered the contentions of the petitioner and the Public Prosecutor.

7. Sec. 12 (1) of the JJ Act says that when any person, who is apparently a child and is alleged to have committed a bailable or non-bailable offence, is apprehended or detained by the police or appear s or brought before a Board, such person shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law for the time being in force, be released on bail with or without surety or placed under the supervision of a Probation Officer or under the care of a fit person. The proviso to Sec. 12 (1) says that such person shall not be so released if there appears reasonable grounds for believing that the release is likely to bring that person into association with any known criminal or expose the said person to moral, physical or psychological danger or the persons release would defeat the ends of justice, and the Board shall record the reasons for denying the bail and circumstances that led to such a decision. The reason for rejecting the bail application is that the offence alleged is heinous. That will not come within the purview of proviso to Sec. 12 (1) of the JJ Act. Moreover, the Apex Court in the order dated 14.08.2024 in SLP (Crl.) No. 9566/2024 observed that from the phraseology used in sub-section 1 of Sec. 12, a juvenile in conflict with law has to be necessarily released on bail with or without surety or placed under the supervision of a probation officer or under the care of any fit person, unless proviso is applicable. This Court in Afsal Ibrahim v. State of Kerala [2013 (4) KHC 30] considered the question of granting bail to a juvenile. In the light of the above dictum, I am of the considered opinion that the petitioner can be released on bail, after imposing conditions. One of the sureties shall be the parent of the petitioner. Therefore, this bail application can be allowed, after imposing stringent conditions.

8. Moreover, it is a well accepted pr

Click Here to Read the rest of this document