Legislature has still not learnt any lesson from Nirbhaya case: Madhya Pradesh High Court denies bail to rape accused juvenile

The Madhya Pradesh High Court has called for more stringent laws to penalise juveniles who commit rape, noting that the present law is inadequate to deal with heinous offences committed by persons below the age of 16. .Single-judge Justice Subodh Abhyankar lamented that the legislature has not learnt its lessons from the Nirbhaya incident of 2012 in which a 23-year-old woman was gang raped and murdered in Delhi.One of the accused in the Nirbhaya case, a 17-year-old, who was a juvenile as per the law in force then, had escaped harsh punishment due to the same. It had led to changes in juvenile justice laws in 2015 but children below 16 still continue to be tried as juveniles in conflict with law. "This Court is also at pains to observe that the Legislature has still not learnt any lesson from the case of Nirbhaya as the age of a child is still kept below 16 years in heinous offences under Section 15 of the Act of 2015 giving a free hand to the delinquents under the age of 16 years to commit heinous offences," the High Court said. The Court was hearing a revision petition of a 15-year-old boy seeking bail in a rape case. The Court while declining the plea observed that despite committing a heinous offence, the petitioner would be tried as a juvenile only, because he is less than 16 years old as provided under Section 15 Act of 2015.It wondered how many more Nirbhayas would suffer before the legislature wakes up. "Apparently, the present law to deal with such cases is totally inadequate and ill equipped and this Court really wonders as to how many more Nirbhayas’ sacrifice would be required to shake the conscious of the lawmakers of this Country," the Court observed. .The case against the boy was that he had committed rape on a minor girl, aged 10-11 years. The victim had also complained that it was the second such instance of the boy raping her. A case was registered under Sections 342, 376 (2) (n), 506 and 376 (a) (b) of the Indian Penal Code, 1860 and also under Section 5 (m) read with Section 6 of the Protection of Children from Sexual Offence Act, 2012.The petitioner was lodged in Child Welfare Home, Jhabua. Principal Magistrate, Juvenile Justice Board, Jhabua had dismissed his plea for bail and the same was confirmed by Sessions Judge, Jhabua.This led to the appeal before the High Court. The counsel for petitioner stated that none of the ingredients of Section 12 of the Juvenile Justice Act of 2015 are satisfied in the present case, as there is no evidence or material on record that if the petitioner is released on bail, he is likely to come in contact with known criminal or in the event of his release, he would expose himself to moral, psychological or physical danger; and his release on bail, would defeat the ends of justice.It was also submitted by the petitioner that the Probationary Officer whose report was placed on record, had given a favourable opinion in favour of the petitioner..The Counsel for State opposed the petitioner's submissions on the ground that the offence was of grievous nature and the plea should be dismissed. .The Court observed that the prosecutrix in her statement recorded under Section 161 of Code of Criminal Procedure had alleged that the petitioner had also raped her around three days ago before the present incident . He had also threatened her of dire consequences if she disclosed the incident to any person.The Court also recorded the seriousness of injuries caused to her vagina due to the rape. The Court, therefore, ruled that it was a fit case to refuse bail. Probationary Officer, in his report, had said that the offence was committed on account of the negligence on the part of the parents of the petitioner and also due to ignorance..However, the Court refused to buy the same. "The conduct of the petitioner clearly reveals that he committed the aforesaid offence with full consciousness and it cannot be said that it was committed in ignorance. This Court is unable to agree with the observation made by the Probationary Officer that an offence of rape can be committed due to ignorance. An offence of rape, being carnal in nature, cannot be committed unless a person has the specific knowledge of the same," it said. If the petitioner is again left to the care of his parents, considering their earlier negligence to harness him, it cannot be said that the girls of tender age around him would be safe especially when he is enjoying the protection of Juvenile Justice Act, the Court added. ."Thus, his release, in the considered opinion of this court, would defeat the ends of justice. As a result, the petition being devoid of merits is hereby dismissed," the Court concluded.