Granting bail to a child accused of committing an offence

The Supreme Court has refused to grant bail to a teenager who is accused of killing a 7 year-old boy at a school in Gurugram. In its order, the Court said that for the purpose of granting bail, the accused teenager is being considered as an ‘adult’. Thus, the Court rejected the teenager’s bail application.

Earlier this year, in a judgement given in June, the Punjab and Haryana High Court had refused to grant bail to the accused teenager. At this stage, the Supreme Court has not interfered with the judgement of the High Court.

How does the law deal with children who commit crimes?

In India, the main law relating to children is the Juvenile Justice (Care and Protection of Children) Act, 2015. According to the Act, a “child in conflict with law” means a child who is accused of an offence, or a child that has actually committed an offence. On the day the offence is committed, the child should be below eighteen years of age.

Section 12 of the Act talks about granting bail to children in conflict with the law. When any child is accused of committing an offence, the child can be detained by the police or brought before a Juvenile Justice Board. In such cases, it is a general rule that the accused child has to be released on bail. However, the child shall not be released if there are reasons for believing that:

1. a) If the child is released, the release will probably bring the child in contact with any known criminal; or
2. b) Releasing the child will expose him/her to moral, physical or psychological danger; or
3. c) The child’s release will be against the aim of justice.

In case a decision is made to not release the child, the Juvenile Justice Board has to record the reasons for denying the bail, and the circumstances that led to such a decision.

Treating a child as an adult

In case a child above 16 years of age is accused of committing a serious offence, the Board conducts an initial assessment with regard to the child’s mental and physical capacity to commit such an offence, the child’s ability to understand the consequences of the offence, and the circumstances in which the offence was committed. After the assessment, the Board may pass an order that there is a need for trial of the child as an adult, and may transfer the case to the Children’s Court.

The Punjab and Haryana High Court judgement

The High Court said that generally, if the Juvenile Justice Board has not given its assessment in a case, a bail application can be granted even to a child above 16 years of age who is accused of committing a serious crime.

However, in this case, the High Court refused to grant bail to the accused teenager because of an earlier order by the Supreme Court. The Supreme Court order had directed that for deciding the bail application, the accused in this case should be treated as an ‘adult’. Therefore, the High Court followed the order and denied bail to the accused teenager.