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IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU
SANJAY DHAR, J.
Master Xth. Shah Wali – Petitioner
Versus
State of J&K & Anr. – Respondents
Crl. A(S) No. 2 of 2022
Decided On : 10-03-2023
Juvenile Justice Act - Bail - Section 101(5) - Sections 376-D, 366, 506, 323 and 212 IPC - [Summary of Acts and Sections: The court discussed the provisions of the Juvenile Justice Act, particularly sections 1(4), 101, and 102, and highlighted the overriding effect of the Act, the right to appeal before the Children's Court, and the revisional powers vested with the High Court. The court emphasized that the revisional powers under the Juvenile Justice Act are exclusive to the High Court and cannot be exercised by the Sessions Judge or Children's Court. The court also pointed out the lack of reasoning in the impugned order and the necessity for a well-reasoned judgment. The decision was based on the jurisdictional error and lack of reasoning in the impugned order.]
Fact of the Case:
The petitioner, a juvenile, was involved in a gang rape case and had been granted bail by the Juvenile Justice Board. The Principal Sessions Judge set aside the bail order, leading to the petitioner filing an appeal under section 101(5) of the Juvenile Justice Act, challenging the jurisdiction of the Sessions Judge and the lack of reasoning in the impugned order.
Finding of the Court:
The court found that the Principal Sessions Judge had erred in exercising revisional jurisdiction under the Juvenile Justice Act and had failed to provide sound reasoning for setting aside the bail order. As a result, the impugned order was set aside, and the petitioner was directed to be released on bail in accordance with the Juvenile Justice Board's directions.
Issues: 1. Jurisdiction of the Principal Sessions Judge as Children's Court under the Juvenile Justice Act. 2. Lack of reasoning in the impugned order setting aside the bail granted by the Juvenile Justice Board.
Ratio Decidendi: The court's decision was based on the exclusive revisional powers vested with the High Court under the Juvenile Justice Act, the lack of jurisdiction of the Sessions Judge or Children's Court to exercise revisional powers, and the necessity for a well-reasoned judgment.
Final Decision: The petition was allowed, the impugned order was set aside, and the petitioner was directed to be released on bail in accordance with the Juvenile Justice Board's directions.
JUDGMENT :
1. The appellant has filed the instant appeal under section 101(5) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter to be referred as the JJ Act) challenging order dated 17.03.2022 passed by learned Principal Sessions Judge, Samba, whereby the learned Sessions Judge has after entertaining a revision petition against order of the Juvenile Justice Board, Samba granting bail to the appellant, set aside the said order.
2. It appears that on 12.01.2021 at about 6. AM, while the victim lady aged about 65 years was walking on the road side, she was overpowered by three accused persons and was raped by them one after the other. Accordingly, FIR No. 08/2021, for offences under sections 376-D, 366, 506, 323 and 212 IPC was registered with the Police Station, Vijaypur and the investigation was set into motion. After conducting the investigation, the aforesaid offences were found established against accused, Mohd. Anwar, Showkat Ali, Mohd Din, Mushtaq Ahmad, Fareed Ahmad and the petitioner herein. Charge sheet against the adult accused was laid before the Principal Sessions Judge, Samba, whereas supplementary charge sheet against the petitioner, who happens to be a juvenile, was laid before the Juvenile Justice Board, Samba.
3. It appears that the petitioner herein filed an application for grant of bail before the Juvenile Justice Board, Samba and he was granted interim bail in terms of order dated 10.03.2021 passed by the Juvenile Justice Board and the said interim bail was made absolute on 22.03.2021. It is pertinent to mention here that the respondents had moved an application for cancellation of the bail before the Juvenile Justice Board, Samba and the said application was also dismissed by the Juvenile Justice Board in terms of the order dated 22.03.2021. Both the aforesaid orders came to be challenged by the respondent by way of a revision petition before the learned Principal Sessions Judge, Samba (Children's Court) and vide the impugned order, the petition was allowed and the orders passed by the Juvenile Justice Board, Samba were set aside.
4. The petitioner has challenged the impugned order primarily on the ground that the Principal Sessions Judge, Samba, while exercising the powers of the Children's Court or of a Sessions Judge did not possess the power of revision in terms of the provisions contained in the Juvenile Justice Act and as such, the impugned order passed by the learned Principal Sessions Judge, Samba is without any jurisdiction. It has further been contended that the learned Principal Sessions Judge, Samba has set aside the order of the Juvenile Justice Board without assigning any reasons.
5. I have heard learned counsel for the parties and perused the record of the case.
6. Learned counsel for the petitioner while addressing his arguments has reiterated his contentions made in the petition. On the other hand, learned counsel for the respondent has submitted that the petitioner, even though, a juvenile, has been found involved in a dastardly crime of gang rape of a 65 years old lady, as such, he does not deserve the concession of bail.
7. Before testing the rival contentions made by the learned counsel for the parties, it would be apt to notice the legal position with regard to the maintainability of the revision petition against an order granting bail by the Juvenile Justice Board. In this regard, certain provisions of JJ Act need to be noticed.
8. Section 1(4) of the JJ Act gives overriding effect to the provisions of the JJ Act. It reads as under:
(i) apprehension, detention, prosecution, penalty or imprisonment, rehabilitation and social reintegration of children in conflict with law, ;
(ii) procedures and decisions or orders relating to rehabil
The main legal point established in the judgment is the exclusive revisional powers vested with the High Court under the Juvenile Justice Act, the lack of jurisdiction of the Sessions Judge or Childr....
Section 12 of Act provides that a juvenile who is brought before Board shall be released on bail.
If the juvenile is released on bail, he will be exposed to moral, physical or psychological danger and confirmed the order of the Juvenile Justice Board and rejected the appeal of the juvenile.
Point of law: Thus it is law that a bail application of a juvenile can be rejected only :-(i) If there appears reasonable ground for believing that the release is likely to bring the juvenile into as....
Juveniles in conflict with the law have a right to bail unless specific legal grounds justify denial, which were not met in this case.
The main legal point established is that the bail application of a juvenile accused of a heinous offence should be governed by Section 12 of the Juvenile Justice Act, 2015, and the court has the auth....
The gravity of the offence is a relevant consideration for refusing bail to a juvenile, and the best interest of the child, demands of justice, and concerns of the society at large must be considered....
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