"The Court deems it fit and proper to call upon all the Juvenile Justice Boards in the State to strictly adhere to the statutory provision of Section 12 of the JJ Act, 2015 while considering the issue of grant or refusal of bail for a CCL and to approach any case where a juvenile is involved with care and sensitivity", observed the Meghalaya High Court on Thursday (12th November).
The Bench of Justice W. Diengdoh made the aforesaid observation while hearing a revision petition preferred under Section 102 of the Juvenile Justice (Care and Protection) Act, 2015, challenging the order passed by the Principal Magistrate, Juvenile Justice Board, Khliehriat in Khliehriat P.S Case No. 34(9) of 2020 under Section 376(1) IPC read with Section 3(j) (ii) 5, 6, of the POCSO Act, 2012.
The Principal Magistrate, Juvenile Justice Board, Khliehriat had rejected the bail application filed under Section 12 of the JJ Act on behalf of the Child in Conflict with Law (CCL).
Facts of the case
On 27.08.2020, an intimation report was received by the Jowai Police from Norman Tunnel Hospital, Jowai stating that on examination of the alleged victim (said to be 16 years of age), it was discovered that the said victim was pregnant and on enquiry, it was told that she had a physical relationship with the CCL involved in the said case.
Accordingly, a case was registered and the matter was forwarded to the learned Special Judge, POCSO Court, Khliehriat.
The mother of the CCL, then, preferred a bail application under Section 12 of the JJ before the Principal Magistrate, JJB, Khliehriat on 28.09.2020.
However, the Principal Magistrate rejected the said bail application mainly on the ground that at that juncture, the statement of the survivor was yet to be recorded under Section 164 Cr.P.C.
Aggrieved with this order of the Principal Magistrate, the petitioner (uncle of the CCL) preferred a revision petition before the High Court challenging the same, inter alia on the ground that the Principal Magistrate, JJB made a serious error in passing the said order without taking into account the provision of Section 12(1) of JJ Act.
The Court remarked that various provisions under the JJ Act show that while dealing with a CCL, the Juvenile Justice Board (JJB) "is called upon to be highly sensitive keeping the welfare of the child in uppermost concern."
The Court also opined that when called upon to apply the provision of Section 12 of the said JJ Act, regard has to be had to the welfare of the child (Juvenile) inasmuch as confining such child in custody in whatever form would not be beneficial to the overall development of the child's personality.
The Court also relied on the Apex Courts order In Re Contagion of Covid 19 Virus in Children Protection Homes, wherein vide order dated 03.04.2020, the Court had issued a slew of directions in respect of measures to be taken by the stakeholders as regards the welfare and safety of juveniles.
One of such directions issued to the Juvenile Justice Board by the Apex Court was that the JJBs shall consider taking steps to release all children on bail who are alleged to be in conflict with law, residing in Observation Homes, JJB, "unless there are clear and valid reasons for the application of the proviso to Section 12 (1), JJ Act 2015, which should have been complied with by the learned Principal Magistrate."
Regarding the instant case, the Court said,
"That the Principal Magistrate has refused bail to the CCL only on the ground that the statement under Section 164 Cr.P.C of the survivor has not been recorded. There is no observation or finding as regard the three conditions laid down in the proviso of Section 12 (1) of the JJ Act which will restrain the CCL as far as his custody is concerned."
[NOTE: The Three Conditions laid down in the Proviso to S. 12 (1) of JJ Act are that (a) the release of such juvenile is likely to bring him into association with any known criminal and (b) that if released he may be exposed to moral, physical or psychological danger or (c) that his release would defeat the ends of justice.]
Further, the Court observed that the Magistrate violated the statutory provision present in the said Section 12 (1).
In view of the above, the Court noted, "the impugned order cannot stand the scrutiny of law and is accordingly set aside."
Case title - Shri. Ngaitlang Suchiang v. State of Meghalaya & Anr. [Crl.Rev.P. No. 8 of 2020]