نابالغ ملزم کی ضمانت کے موضوع پر سپریم کورٹ کا رہنما فیصلہ

 PLD 2024 SC 843
PLJ 2024 SC (CrC) 270

A bare reading of the provisions of subsections (4) and (5) of Section 6 of the Juvenile Justice System Act 2018 shows that Section 6(4) of the 2018 Act provides that where a juvenile of more than sixteen years of age is arrested or detained for a heinous offence, he may not be released on bail if the Juvenile Court is of the opinion that there are reasonable grounds to believe that such juvenile is involved in the commission of a heinous offence. While, Section 6(5) of the 2018 Act provides that any juvenile who has been detained for a continuous period exceeding six months and whose trial has not been completed shall be released on bail, provided that the delay in the conclusion of the trial has not been occasioned by an act or omission of such juvenile.

It is thus evident that while Section 6(4) deals with the matter of bail on merits, while Section 6(5) provides for a distinct and separate ground of bail, namely, the delay in the conclusion of the trial of the juvenile. It is also important to underline that since both ‘minor offence’ and ‘major offence’ are treated as bailable under Section 6(3), the ground of delay in the(Naeem)conclusion of the trial provided by Section 6(5) for grant of bail applies solely to juveniles detained for a ‘heinous offence’.Therefore, post-arrest bail is to be granted as a matter of right to a juvenile detained for a heinous offence, regardless of his age, whether above or below sixteen years, provided the prerequisites of Section 6(5) are fulfilled.

The 2018 Act is a beneficial legislation that favors juvenile offenders. It not only reduces the period for granting bail on the statutory ground of trial delay for juveniles detained pending trial under the previous law, i.e., the Juvenile Justice System Ordinance, 2000 (“2000 Ordinance”), from one year to six months but also removes the disqualification of having a previous criminal record for bail on this ground. Unlike the 2000 Ordinance or Section 497 of the Criminal Procedure Code, 1898, the 2018 Act does not(Naeem) impose any other statutory disqualifications for granting bail to juveniles on the ground of delay in the conclusion of the trial. The subsequent ameliorative and benevolent legislation, i.e., the 2018 Act, reflects the legislature's intent to ensure that the trial of a juvenile is concluded within six months of his detention, and any delay beyond this period entitles the juvenile to be released on bail. Furthermore, since the denial of bail and detention of an accused pending trial curtail his fundamental rights to liberty, fair trial and dignity guaranteed by Articles 9, 10-A and 14 of the Constitution, statutory provisions on bail matters, such as Section 6(5) of the 2018 Act, must be interpreted in a manner that is progressive and expansive of these rights.

The nature of the offence is not a valid ground to withhold bail under Section 6(5) of the 2018 Act; in fact, this provision only applies to heinous offences, as other offences are bailable under Section 6(3) of the 2018 Act.

The High Court has also erred in law by attributing the delay in concluding the trial to the petitioner, who had filed an application for determination of his age under Section 8 of the 2018 Act, which took time. It is crucial to emphasize that the initial duty to determine the age of an accused who appears or claims to be a juvenile lies with the police. When the police fail in (Naeem)this duty, it passes on to the court. Therefore, the time spent by the court in making this determination constitutes an act of the court, which cannot be construed as delay caused by the petitioner in the trial, thereby depriving him of his right to bail on the statutory ground of delay.So far as the delay caused by the frequent absence of the co-accused during trial is concerned, the same cannot be attributed to the petitioner as one is responsible for his own acts or omissions, not of others.

Crl.P.L.A.80-P/2024

Mehran v. Ubaid Ullah and others.