[Juvenile Justice Act] Bail cannot be claimed as a right: JJB Srinagar rejects bail plea of two juveniles in Krishna Dhaba terror attack

Bail cannot be claimed as a matter of right in cases be tried under the Juvenile Justice Act, 2015 (JJ Act) when there is a possibility that the 'child in conflict with law' (CCL) could be exposed to hardened criminals or repeat similar offences, the Juvenile Justice Board (JJB) at Srinagar ruled. .The JJB, therefore, rejected the bail application of two CCLs in the Krishna Dhaba terror attack case in which militants had shot a man working at the famous eatery, Krishna Dhaba in Srinagar on 17th February this year.The order was passed by a coram comprising Principal Magistrate Touseef Ahmad Margey, and members Khair-ul-Nisa and Dr. Asima Hassan after the two CCLs were charged for murder and other offences under the Unlawful Activities Prevention Act (UAPA). "It is a cardinal principle of law as well as provided in the JJ Act itself that where there is a possibility of exposure of children with hardened criminals and repetition of similar offences, the Juvenile Justice Board would be fully justified in refusing to grant bail to them; bail cannot be claimed as a matter of right in such cases," the order said. The JJB noted that the CCLs, in the present case, were used by unknown persons who were acting at the behest of Pakistan based terrorists. "In the instant case, the investigation done till now has established that a criminal conspiracy was hatched by the Pakistan based terrorists in association with the terrorists active in the valley and with their associates to commit the alleged act of terrorism. The CCLs in the instant case seem to have been exploited by some unknown persons on the direction of Pakistan based handlers," the order noted while rejecting plea for bail. In this regard, the JJB adverted to proviso to Section 12 of the JJ act which provides that a CCL shall not be released if there are reasonable grounds to believe that the release is likely to bring that person into association with any known criminal or expose him/ her to moral, physical or psychological danger or the person’s release would defeat the ends of justice. .The counsel for the applicants stated that the CCLs are entitled to bail irrespective of the gravity of the offence and grant of bail to the CCLs is not a liberty for them to commit an offence. It was submitted that provisions have been incorporated under the JJ Act keeping in view the larger object that the welfare and upbringing of the CCLs is of paramount importance. The law presumes that the children do not have the necessary intention under law to commit an offence but are innocent enough to have criminal tendency..Further, it was submitted that the case of the CCLs in the instant case does not fall under the proviso to Section 12 of the JJ Act as they do not have any history of past criminal activity and it is a settled position of law that there is no concept of custody in case of children. While deciding an application under Section 12 of the JJ Act, the JJB is in principle, deciding the better custody of the children who are alleged to be in conflict with law and parents are the best persons to take the custody of the children who will undertake that they will take care of the children in tune with the object of the JJ Act and the children can be kept under the surveillance of the Juvenile Officer, it was contended. .The Additional Public Prosecutor on behalf of Union Territory of Jammu & Kashmir (J&K) submitted that the investigation of the case is in its infancy and allowing bail application will have adverse effects on the logical conclusion of the investigation. He further stated that the proper counselling of CCLs by professional counsellor is very important so that they do not indulge again in such anti-social activities or other offences. Such counselling would be imparted in observation homes, he added. .The JJB also referred to the reports submitted by the Probation Officer of the observation home and Legal Cum Probation Officer and Social Worker, District Child Protection Services, Srinagar. The reports stated that in case CCLs are released on bail, the criminals who used the CCLs may again approach them and get them involved in more dangerous and unlawful activities. It was also noted that one of the CCLs had shown very aggressive behaviour on some occasions and has also damaged the property of the observation home..The JJB also noted that going by the investigation conducted till now, it seemed that some hardened criminals exploited the CCLs and there was reasonable ground for believing that their release on bail at this juncture might again bring them in contact with such criminals who are yet to be apprehended. "Further, there is also a reasonable apprehension that release of CCLs at this juncture might expose them to physical danger at the hands of terrorists or anti-national elements," the JJB said.Therefore, in view of the fact situation and taking into account the exceptions carved out by proviso to Section 12, the JJB rejected the bail plea. ."As such, it will be in the best interest of the CCLs as envisaged under one of the Fundamental Principles of Juvenile Justice (Care and Protection of Children) Act, 2015 to let the CCLs stay in the Child Care Institution, Observation Home, Harwan where the process of reformation and rehabilitation is initiated for subsequent social reintegration of the CCLs," the order said.