Srinagar: A juvenile justice board has given bail to a minor from Kashmir Valley who was booked under the Unlawful Activities (Prevention) Act, noting that his alleged offences cannot be called “heinous”.

The minor child was booked by Jammu and Kashmir Police for raising slogans that were allegedly “anti-national” during the funeral of a man who had died in a road accident on May 28 in Kupwara district.

In its order, the Kupwara juvenile justice board ruled that the offences for which the minor has been booked – even though allegedly serious ones – are not heinous.

“Principle of presumption of innocence states that any child shall be presumed to be innocent of any malafides or criminal intent up to the stage of 18 years. Also the punishment for the offences alleged to have been committed by the child in conflict with law have the maximum punishment of 7 years, so the offences cannot be called heinous offences,” the juvenile justice board’s order reads.

Citing Rule 8 of the Juvenile Justice Act, 2015, the juvenile justice board members Muhammad Rafi Shah and Ruqia Hassan said that a child should be apprehended for conflict with law only in the case of heinous offences.

“In the present case, the child in conflict with law is alleged to have committed offences which are of serious nature and thus according to this provision child in conflict with law cannot be apprehended unless special reasons exist,” the juvenile justice board said.

According to the board, no FIR can be registered against a child in conflict with the law even in cases of serious nature, but only in case of heinous offences. “In cases other than heinous offences, only [a] report in the “General Dairy” is to be recorded,” it said.

The board further said that bail can be denied to a child in conflict with law only when there are reasonable grounds that release of such a child may expose the child to physical or psychological danger or the child’s release would defeat the ends of justice.

It said that as per guidelines approved for functioning of juvenile justice boards vis-à-vis children in conflict with law, a child shall be placed in institutional care as a step of last resort after inquiry.

The juvenile justice board added that principle of repatriation and restoration says that “every child in the juvenile justice system shall have the right to be re-united with his family at the earliest and to be restored to the same socio-economic and cultural status that he was in, before coming within the purview of this Act, unless such restoration and repatriation is not in his best interest”.

“The child in conflict with law is also having biological family, without any fractured or broken family. Therefore, the family of the child in conflict with law is well to receive the child in conflict with law if released on bail and the child in conflict with law who is presently in observation home Srinagar from 1st June 2021 cannot be put for further time in the observation home as all the possible measures have to mobilised for rehabilitation, one after another,” the Board said, adding that placing the child in conflict with law in the observation home Srinagar is a “part of rehabilitation and cannot be considered a sort of punishment.”

Grounds invoked by prosecution to oppose bail

The prosecution opposed the release of the minor on bail on grounds that he has committed heinous offences.

“The learned Additional Public Prosecutor (APP) ardently opposed the application for the reason that offences alleged to have been committed by the child in conflict with law are heinous in nature and non-bailable and thus bail cannot be claimed as a matter of right,” the order reveals.

The prosecution also opposed the bail on the grounds that the offences committed by the child had a “serious implication” on society.

“It has been by also stated by learned APP  that custody of the juvenile may not be changed at this stage as the parents of the juvenile have already lost the control over the juvenile and also the investigation of the case is at its  infancy stage and release of the juvenile will cause serious implications on the investigation,” the order states.

The counsel appearing for the juvenile, in an application seeking his release, submitted that he is a law-abiding citizen and has been arrested by police in a “false and frivolous” case.

He also submitted that the minor has no criminal record and his future will be affected if he is not released.

“It has been also averred in the application that the child in conflict with law is a student and his future will get affected if made to remain outside the home further and also the prolonged detention of the child in conflict with law will adversely affect his health,” the order states.

As reported by The Wire, on May 28, a car hit 29-year-old Bumhama resident Mohammad Amin Dar on the main road in the village that connects Kupwara district to Jammu and Kashmir’s summer capital Srinagar.

According to police, “anti-national” slogans were raised during his funeral, following which police registered a UAPA case against eight persons including the minor.

They were booked under Section 13 of the Unlawful Activities Prevention Act, 1967 which calls for upto seven years of imprisonment for advocating, abetting, advising or inciting the commission of any unlawful activity.

This article first appeared on The Wire