The Bombay High Court, while holding that a child in conflict with law cannot be denied the right to be reunited with his family if the report of an expert of the observational home stated that he is not a danger to society, recently granted bail to a boy booked in a gang rape of a seven-year-old girl in 2020. The applicant, who was a minor at the time of the incident, recently turned 18.
The court referred to provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 and observed that the applicant should get benefit of being released on bail despite the Juvenile Justice Board and a special court having rejected his pleas thrice.
The bench noted last month that “the applicant is now an adult and his stalled education cannot be discontinued further” and “he deserves to be reunited and restored with his family” and the “same will be in his best interest so that he can develop himself with full potential”.
A single-judge bench of Justice Bharati H Dangre was hearing the bail plea argued through advocate Maharukh Adenwalla seeking the applicant’s release on bail under the 2015 law. The applicant was arrested in December 2020, and being a minor, he had filed a bail plea through his mother.
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As per prosecution, the girl was gang-raped by five adults and the applicant, and the incident was revealed after the minor narrated the ordeal to her parents. As per the complaint, the accused persons had taken the victim to a secluded area and touched her private parts and threatened her that she should not disclose about the incident. A few days later, the accused allegedly sexually assaulted her.
The lawyer argued that on the date on which the alleged offence was committed in 2020, the applicant was 16 years and five months’ old and he belonged to a lower middle class socio-economic background. The applicant said he had passed Class 10 but could not pursue his education due to his mother’s illness, family’s financial difficulties, and later due to his detention in an observational home.
Adenwalla referred to the January 2021 reports of the probation officer and child guidance clinic about the applicant’s present psychological and physical status that said he is not a danger to society, and recommended opportunity to the applicant to become a “better person”. Adenwalla said his continued detention in the observational home was unnecessary, adding that the applicant was falsely implicated in the case on the basis of a statement by his paternal uncle, with whom his family is at loggerheads, and the victim had failed to properly identify the applicant.
Advocate A A Takalkar for Mumbai Police opposed the bail plea and stated that if released on bail, the applicant would pose a danger to the victim, who resides in the same area. Advocate Saveena Bedi, representing the father of the girl, also opposed the application.
After perusing submissions, Justice Dangre observed, “The accusations faced by the applicant are undisputedly serious, but he must also derive the benefit of being a ‘child’, despite he being tried as an adult and the benefit of Section 12 (bail of juvenile) of the 2015 Act cannot be denied to him.”
The bench held, “The applicant has positively responded to the rehabilitative efforts, during his stay in the observation home, which is in tune with the Act of 2015…By invoking principle of repatriation and restoration to the same socio-economic and cultural status that he was in, before commission of alleged crime, with no specific reason being traced out as to why he shall not be denied to repatriation and restoration, he deserves his release on bail under Section 12 of the 2015 Act.”