Nirbhaya gangrape case: Centre seeks extension of observation home stay of juvenile convict

New Delhi: The Centre on Monday asked Delhi High Court to extend the observation home stay of the juvenile convict in December 16, 2012 gangrape case who is scheduled to be released on Sunday, saying several mandatory aspects were missing from the post-release rehabilitation plan which needed to be considered before setting him free.

After hearing the brief arguments and perusing the post-release plan, which was submitted by the central government, the court reserved its verdict on BJP leader Subramanian Swamy's PIL seeking stay on the juvenile's release.

No mention of mental health status and follow-up were among the concerns listed by Additional Solicitor General (ASG) Sanjay Jain while appearing for the Centre. He sought an extension of the juvenile's stay till the time all the missing aspects in the post-release plan are taken into account.

Swamy told a bench of Chief Justice G Rohini and Justice Jayant Nath that though the juvenile's term may have ended, but the court can "circumscribe" his movements.

The ASG told the court that it has several "concerns" regarding the plan made by the management committee (MC), set up as per the Juvenile Justice (JJ) Rules.

He said the committee's plan does not mention the mental health status of the juvenile, which is a mandatory requirement under the rules.

He said the mental health aspect was missing from the report of the person who counselled the juvenile.

The ASG also said that the plan does not mention anything regarding the juvenile's willingness to continue in the societal mainstream.

He said that no follow-up action has been contemplated in the MC's report and this aspect was "completely missing".

He told the bench that as per records, the juvenile is set to be released on December 20 this year and not tomorrow and sought that his stay be extended till the time the MC takes into account all the missing aspects in its post-release plan.

The court, thereafter, said it now shall go through the MC's plan and the Intelligence Bureau's report, which was placed in a sealed cover, and will pass an order. It also wondered whether it can curtail the liberty of a person.

In his petition, Swamy has claimed that there is lacuna in the Juvenile Justice (Care and Protection of Children) Act 2000, as amended in 2011.

JJ Board had sentenced the juvenile three years detention in reformation home.

In the petition, Swamy contended that "no provision has been made in the Act, to provide for vicious unregenerate convicted juveniles who despite having undergone the reformation process for the maximum penalty of three years custody in a special home, continue to be a menace to the society".

"...provision has to be made to deal with such juvenile for further period in such a manner that he does not prove menace to the society.”

"The question arises, in a very acute form, in the instant gangrape case, where the respondent no.1 (juvenile), one of the offenders, who was adjudged to be under eighteen years of age at the time of the offence, is about to complete the maximum period of the offence prescribed....”

"And yet it is learnt that there is a report of the Ministry of Home Affairs wherefrom it emerges that this juvenile has not reformed but has become worse, having been radicalized by association with another juvenile convicted of involvement in the 2011 Delhi High Court blast," the plea said.

He also said in his petition that the JJ Board should be given some "teeth to deal with such a case of an unreformed juvenile criminal".

The Supreme Court had earlier rejected Swamy's petition challenging the constitutional validity of the Juvenile Justice (Care and Protection of Children) Act 2000.

He had sought that juvenile in the case be prosecuted in a criminal court in view of the gravity of his offence.

Six persons, including the juvenile, had brutally assaulted and raped a 23-year-old girl in a moving bus in south Delhi on December 16, 2012. The victim had died in a Singapore hospital on December 29, 2012.

Mukesh, Vinay, Pawan and Akshay were awarded death penalty by trial court in the gang rape and murder case, which was later confirmed by Delhi High Court. Their appeals are pending before the Supreme Court.

Accused Ram Singh had allegedly committed suicide in Tihar Jail on March 11, 2013, and proceedings against him were abated following his death.