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Judges shouldn't proclaim they are law-makers for exhibition of judicial valor

Judges shouldn't proclaim they are law-makers for exhibition of judicial valor

Zubair Ahmad Teli Vs Union Territory of J and K

Jammu and Kashmir HC


Crl R No. 15/2021; CrlM No. 1019/2021

About/from the judgment:

While granting bail to juveniles in conflict with the law for their alleged involvement in a murder case, the High Court recently observed that judges should not proclaim they are playing the role of law-makers merely for the exhibition of judicial valour.

The Court opined that the Sessions Court was wrong in insisting on a social investigation report or discussing the gravity of offences while granting or denying bail to juveniles as the same is not contemplated under the Juvenile Justice Act, 2015.

"There is no scope for the courts to innovate or take upon themselves the task of amending or altering the statutory provisions. In such a situation, the judges should not proclaim that they are playing the role of law-makers merely for exhibition of judicial valor. The thin-line which separates adjudication from legislation should not be crossed or erased," the Court said in its judgement

The Court also stated that it must avoid determining the meaning of provisions based only on their own preconceived notions.

"The courts must avoid the danger of determination of meaning of provision based on their own preconceived notion of ideological structure or scheme into which the provision to be interpreted is somewhat fitted. The courts are not entitled to usurp the legislative functions under the disguise of interpretation," the judgment stated.

The Court was dealing with a revision petition moved in terms of the Section 102 of the Juvenile Justice (Care and Protection of Children) Act.

In March 2021, a man reported to a police station that his son, who had gone missing, was found injured on the roadside. The boy was shifted to a hospital where he succumbed to his injuries.

The police, during interrogation of the appellant-juveniles, claimed that they admitted to hitting the deceased with a bat. They were then arrested and remanded to a Juvenile Home.

The appellants first moved a bail application before the concerned Juvenile Justice Board (JJ Board). The Board granted them bail and their custody was given to their paternal relatives.

Subsequently, the father of the deceased filed an appeal before the Court of the Kulgam Principal Sessions Judge, who set aside the order passed by the JJ Board and ordered that the juveniles be taken into custody.

The appellants moved the High Court against the order of the Sessions Judge.

Counsel for the petitioners Tariq M Shah argued that the Sessions Court had misdirected itself by holding that the social investigation report as required under Section 15 of the Juvenile Justice Act, is required before consideration of bail in favour of juvenile delinquents.

It was contended that the sessions court had effectively re-written the statute and defeated the intention of the legislation in passing the JJ Act.

Moreover, it was argued that the order was passed without taking into consideration that the Juvenile Justice Board had followed the procedure established under law to grant bail and had handed over their custody to responsible persons against an undertaking after proper enquiry and application of mind.

It was also submitted that Section 12 of the JJ Act has to be interpreted independently irrespective of any other provision laid down under the Act and the same has been clearly interpreted by the higher courts in their various judgments.

The High Court found merit in these arguments and concurred that the provisions of bail contained under Section 12 of the JJ Act cannot be stretched to deny bail by borrowing irrelevant principles and construction of the statute in such a way that its very aim and objective is defeated.

"Section 12 of the JJ Act requires bail to be mandatorily granted to the juveniles in conflict with law and grant of bail to such a person is a rule and denial is an exception. Bail can only be denied to a juvenile in conflict with law on the ground that it is likely to bring him in association with any known criminal or expose him to moral, physical or psychological danger or his release would defeat the ends of justice," the Court said.

Therefore, the Court struck down the order passed by the Sessions Court for being unsustainable in law, and restored the order passed by the Juvenile Justice Board granting bail to the appellants.

Read the Judgment


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