(1) When any person, who is apparently a child and is alleged to have committed a bailable or non-bailable offence, is apprehended or detained by the police or appears or brought before a Board, such person shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law for the time being in force, be released on bail with or without surety or placed under the supervision of a probation officer or under the care of any fit person:
Provided that such person shall not be so released if there appears reasonable grounds for believing that the release is likely to bring that person into association with any known criminal or expose the said person to moral, physical or psychological danger or the person's release would defeat the ends of justice, and the Board shall record the reasons for denying the bail and circumstances that led to such a decision.
Legal Commentary & Landmark Judgments: Section 12
Section 12 of the Juvenile Justice Act, 2015 enacts a mandatory statutory entitlement to bail for any person who is apparently a child, overriding all contrary provisions of the Code of Criminal Procedure.
Bail is mandatory irrespective of whether the alleged offence is bailable or non-bailable, compoundable or non-compoundable. The proviso to sub-section (1) carves out only three narrow, exhaustive exceptions where bail may be refused: (i) if there appear reasonable grounds for believing that the release is likely to bring the child into association with any known criminal, (ii) expose the child to moral, physical, or psychological danger, or (iii) defeat the ends of justice. If bail is denied under these provisos, the Board must record recorded reasons and send the child to an observation home or place of safety.
Section 12 completely divorces juvenile bail jurisprudence from the standard criteria under Section 437/439 CrPC. Factors such as seriousness of the crime, heinousness, or societal outrage are legally irrelevant when adjudicating juvenile bail. The inquiry is strictly child-centric: the sole question is whether release exposes the child to criminal association, severe danger, or subversion of justice.