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by Saumil Ahuja a 2nd year law student at Christ Deemed University, Bangalore
Why is it in news?
Recently the Bombay high court bench comprising Justice Bharati Dangre and Manjusha Deshpande ordered for the release of the minor accused involved in the road accident case in Pune. The release has been from the observation home where he had been remanded by the Juvenile Justice Board by becoming succumbed to public pressure.
What’s the issue in detail?
On the morning of 19th may the son of the builder was involved in a rash road accident with a motorcycle having 2 passengers. The son was driving Porsche (his father’s car) and it got engaged in collision with motorcycle leading to the death of 2 engineers. It was found that accused was intoxicated and was driving at a very high speed under influence of it. FIR was lodged against the accused under section (304 A, 279, 337, 338 and 427) IPC and also the provisions of motor vehicle Act were applicable. The juvenile appeared before the Juvenile Justice Board and was granted bail by it on the very first day of appearance. The juvenile was let go off after writing 300 – word essay on Road accidents and referring him to alcohol deaddiction centre. But after succumbing to the public/ social pressure the minor accused was remanded to the observation home. The juvenile justice board passed this order courtesy the prosecution application filed before it where section 104 of Juvenile Justice Act, 2015 was taken help of. It was filed because new evidence was found which included the CCTV footages of him in which he was consuming alcohol and ciggerates before the accident. Section 104 of this act allows the board to review its orders and amend its own decisions which may include the institution where the accused has to be sent or under whose supervision the child is to be kept. Although, the question was not about the bail granted but the Board quashed its earlier order and directed the accused towards observation home and full procedure was followed like directing the child to rehabilitation center, seeking advise from experts and thus directing him to de addiction program.
What is high court stand on it?
In response to it the minor’s paternal aunt (Pooja Jain) challenged the order of juvenile justice board before the Bombay high court and stated the reason that the decision is “abjectly unlawful and arbitrary custody and incarceration”. In short, the aunt filed a case of Habeas Corpus against the Juvenile Justice board. “Habeas Corpus is a Latin word meaning which literally means ‘to have the body of’. It is an order issued by the court to a person who has detained another person, to produce the body of the latter before it. The court then examines the cause and legality of detention.” The high court reprimanded the juvenile justice board decision which directed the child to observation home when the inquiry was pending. It stated that the minor cannot be directed to observation home when the bail has already been granted by the juvenile justice board under section 39(2) of the Juvenile Justice Act, 2015. “Section 39(2) of the Juvenile Justice Act states that “for children in conflict with law the process of rehabilitation and social integration shall be undertaken in the observation homes, if the child is not released on bail or in special homes or place of safety or fit facility or with a fit person, if placed there by the order of the Board”. The public prosecutor argued that since the family of the accused was in custody including the parents and grandparent therefore, there was no mentally fit person to take care of the minor child and hence could not be released on jail. The court in response stated that the accused paternal aunt was not in custody and was a mentally fit person therefore, the accused could have been released on bail under the supervision of her. The court stated that they were bound by the law and ordered for release. It stated that the minor child has to be treated different from adults and the law is same for all “Children in conflict with law” (CCL). Here, in any case in Juvenile Justice Act the gravity of the offence is of no use rather it is the age of the person which is to be considered. The age of the person is under 18 years and notwithstanding, the gravity of offence is not to be seen and hence, he has to be treated like minor and is to be granted bail. The court is right as the objective of the Juvenile Justice act,2015 is that “The bail is the right and the jail is the exception” provided the criteria is met under section 12(1). Section 12(1) states 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 appears 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 any fit person”. Therefore, after analyzing the above situation the court ruled the release of the minor under section 12(1). However, the Pune cops have decided to approach the supreme court bench as a matter of appeal against the juvenile justice board decision.
Recent Updates to the Case
The father of the accused has been granted bail by the sessions court along with him 5 others have also been granted bail which include the managers and owners of the 2 bars where the accused had drunk. The father was accused under section 75 of JJ Act. Section 75 of JJ Act delas with cruelty to the child. The father was accused under this section as he gave the car to his minor child and thus endangering the life of the accused. The counsel representing him argued that section 75 of the JJ Act was non cognizable offence and there weren’t any provisions specifying the arrest of the accused. The court granted bail to the father stating that he will follow all the conditions laid down by the court and will also cooperate with the police. Now, the 5 others including owners and managers of 2 hotels were accused under section 77 of the JJ act. Section 77 is applicable to the person who supplies the child with intoxicating drugs. This section also deals with non cognizable offence and there exists nothing to be probed with the accused under section 77 and hence were granted bail by the session court.
However, the father of the minor accused along with his wife (mother of the minor) is still in judicial custody for swapping her blood samples with the minor accused and after the reports came to the court, the accused mother was arrested. Moreover, the head of the forensic department Dr Ajay Taware was also arrested for manipulating the minor accused blood samples and as a matter of evidence a lot of phone calls were exchanged between the minor’ father namely Vishal Aggarwal and Dr Ajay Taware. According to the Maharashtra minister Hasan Mushrif, the doctor was on leave from the hospital and he also accepted Rs 3 lac for exchanging the blood samples.
The minor’s father and grandfather were also arrested under section 342, 365, 506, 34 of the Indian Penal Code. It was because they attempted to bribe the driver to take the blame of accident upon him in exchange of gift and say that he was driving that car. This was after they had abducted the driver in BMW car and took him to the bungalow. After that the FIR was registered against father and grandfather of the minor for kidnapping the driver and hence, they were afterward arrested by the police.
Can the minor be treated as adult under Juvenile Justice Act?
In the normal scenario, the person who is below 18 years old (in this case a 17year old) is treated as a minor under the law and is produced before the Juvenile Justice Board (JJB) instead of normal criminal court. “The JJB is a special judicial body under the act comprising a principal magistrate and two social workers, who are then responsible for adjudicating the case against the child.” However, the law also states that the minor accused who are between the age group 16 to 18 years can be treated as adult if the heinous offences have been committed. “Heinous offences are defined in Section 2(33) of the Act and constitute all those offences having minimum punishment of 7 years of imprisonment under IPC or any other law.” The court observed in the Nirbhaya case in 2012 that the minor who was involved in the gang rape was a minor but had committed a heinous offence so he was treated as adult in specialized children’s court. The JJB firstly conducts preliminary assessment in order to determine the mental capacity. Even if the minor has committed heinous offence, it does not mean that he will be treated an adult. It is the mental capacity, maturity and the ability to understand the circumstances of the case which will ultimately determine whether the minor can be treated as an adult. In the Ryan International School murder case the minor accused was treated as an adult because of his psychological evaluation. The court stated that he was physically mature and had social or emotional competence while committing the act and so his case was transferred to the Children’s Court. It must be taken into consideration that mental capacity is not the sole criteria while considering the minor to be adult.
Applicability to this case.
In this case, the minor was charged with section 304A of the IPC which deals with causing death by negligence. It is not a heinous crime as in this case an individual is only subjected to 2 years of imprisonment which is less than 7 years. However, the cops are trying to challenge the bail under section 304 IPC which deals with culpable homicide not amounting to murder which has a punishment of 10 years so hence qualifying as heinous offence. But it is also be said that even if the cops challenge it under this ground, the verdict will not change as under the Juvenile Justice Act, 2015 as the objective the act which is stated under section 12 of the JJ act, bail is treated as a matter of right regardless of the gravity of the offence. However, in only 1 condition bail can be explicitly denied is that release would bring the minor in contact with dangerous known criminals or it can expose them to danger. Hence, there is a lot of probability that the minor will still get the bail even in heinous offence as bail is a matter of right under the act.
References
Juvenile Justice Act, 2015, § Section 39 (2), No. 22, Acts of Parliament, 1908 (India).
Legalknowledgebase.com, Why is habeas corpus a matter of right?, September 10, 2022
Juvenile Justice Act, 2015, § Section 12 (1), No. 12, Acts of Parliament, 1908 (India).
Juvenile Justice Act, 2015, § Section 75, No. 33, Acts of Parliament, 1908 (India).
