Dismissing an appeal filed by a youth accused of facilitating the movement of terrorists who allegedly attacked security personnel at Ban Toll Plaza, Jammu, the Court held that the material relating to his alleged contact with a Pakistan-based Jaish-e-Mohammed handler and other co-accused supported the apprehension raised by the prosecution and the conclusions reached by the Children's Court.

A Division Bench of Justice Sanjeev Kumar and Justice M.A. Chowdhary observed,

“.....The alleged association of the petitioner with persons stated to be connected with a terrorist organization must also be considered from the standpoint of his welfare and rehabilitation.”

Background

The appeal was filed by Suheel Javaid Lone, a child in conflict with law, challenging an order passed by the Presiding Officer, Fast Track Court, Jammu, functioning as the designated Children's Court, which had rejected his application for bail under Section 12 of the Juvenile Justice Act.

The case arose from an incident dated January 31, 2020, when a police party deployed at Ban Toll Plaza, Jammu, stopped a truck for checking. According to the prosecution, terrorists travelling in the truck opened indiscriminate fire at police and security personnel, injuring Constable Boom Raj.

The investigation was subsequently transferred to the NIA, which alleged that six persons, including the appellant, were involved in a conspiracy to facilitate the movement of terrorists and carry out an attack on security forces.

The prosecution alleged that the appellant, while pursuing coaching at Ambala, Haryana, came into contact through social media with a Pakistan-based handler associated with Jaish-e-Mohammed. He was also alleged to have remained in close contact with co-accused Sameer Ahmad Dar, who was driving the truck, and facilitated the transportation of terrorists from the Jammu region towards the Kashmir Valley during the intervening night of December 22–23, 2019.

The appellant was found to be 17 years, 5 months and 11 days old at the time of the alleged occurrence. Following a preliminary assessment under Section 15 of the Juvenile Justice Act, the Juvenile Justice Board concluded that he possessed the mental and physical capacity to commit the alleged offence, understood its consequences and had the maturity to appreciate the circumstances in which it was committed. The Board accordingly directed that he be tried as an adult.

He was subsequently charged under Sections 120-B, 121, 121-A and 122 of the Indian Penal Code and Sections 18 and 39 of the Unlawful Activities (Prevention) Act, 1967.

The appellant argued before the High Court that merely because he had been directed to be tried as an adult, he did not cease to be a child entitled to the statutory protection under Section 12 of the Juvenile Justice Act. He also contended that the gravity of the alleged offences could not, by itself, justify rejection of bail and that he had remained in custody since February 9, 2020, without the trial having concluded.

The NIA opposed the appeal, submitting that the material collected during investigation prima facie indicated the appellant's involvement in facilitating the movement of terrorists. It further argued that his release could expose him to moral and psychological influences through renewed contact with the alleged handler and other accused persons.

Court's Observation

The High Court first examined the scope of Section 12 of the Juvenile Justice Act, which provides for release on bail of a child accused of a bailable or non-bailable offence, subject to the exceptions contained in its proviso. The provision permits denial of bail where there are reasonable grounds for believing that the child's release is likely to bring him into association with a known criminal, expose him to moral, physical or psychological danger, or defeat the ends of justice.

The Bench clarified that the seriousness or heinousness of the alleged offence, by itself, cannot be a ground to reject bail under the provision. It observed,

“The heinousness of the offence too is not a valid ground to reject bail plea of CCL.”

The Court further held that a child directed to be tried as an adult under Section 19 of the Act does not cease to be a child within the meaning of Section 2(12) and continues to enjoy the protection available under Section 12.

It also clarified that although Section 12 confers the power to consider bail on the Juvenile Justice Board, Section 8(2) enables the High Court and the Children's Court to exercise the powers conferred upon the Board when proceedings come before them under Section 19 or in appeal, revision or otherwise.

Turning to the facts of the case, the Bench noted that the prosecution had specifically alleged that the appellant came into contact with a Pakistan-based handler associated with Jaish-e-Mohammed through social media and remained in contact with the co-accused who allegedly facilitated the movement of terrorists.

The Court clarified that it was not required, at the stage of deciding the bail appeal, to determine the truth of the prosecution allegations, which would have to be adjudicated by the trial Court on the basis of evidence. The question was whether the material on record provided reasonable grounds for attracting any of the exceptions under Section 12(1).

It observed that apprehensions regarding the possible association of a child with known criminals or exposure to moral, physical or psychological danger must be supported by material on record and cannot rest on mere conjecture.

In this regard, the Bench made the observation,

“The alleged association of the petitioner with persons stated to be connected with a terrorist organization must also be considered from the standpoint of his welfare and rehabilitation. Where the material on record provides reasonable grounds to believe that the release of a child is likely to expose him to influences detrimental to his welfare, such circumstances may be considered while examining the exception relating to moral or psychological danger.”

The Court added that, in the present case, the alleged contacts and the role attributed to the appellant lent support to the apprehension raised by the prosecution and the conclusions arrived at by the trial Court.

The Bench also considered that the appellant had remained in custody since February 9, 2020, and that the trial had been pending since 2020. It acknowledged that the period of custody was a relevant consideration but held that it had to be assessed alongside the other circumstances of the case.

The Court observed that the alleged association of the appellant with persons connected with the terrorist organisation and the role attributed to him in facilitating the movement of terrorists were relevant factors. In the circumstances, the period spent in custody, though significant, did not by itself warrant interference with the order rejecting bail.

The Bench also cautioned against invoking the expression “defeat the ends of justice” merely because the alleged offence was serious. The Court must examine whether the material on record provides reasonable grounds for believing that release of the child would defeat the ends of justice.

Finding that the Children's Court had considered the relevant material and specifically delineated the circumstances attracting the exceptions under Section 12(1), the High Court held that its conclusions could not be said to be without a reasonable basis.

The Division Bench thus dismissed the appeal and upheld the order of the Children's Court rejecting the appellant's bail application.