Supplementary affidavit filed today by learned counsel for the accused-appellant is taken on record.
Heard learned counsel for the appellant and learned A.G.A.
This criminal appeal has been preferred against the impugned order dated 02.04.2019, passed by Children's Court/Additional Sessions Judge 8th, Court No. 9, Ghaziabad, in Criminal Misc. Bail Application No. 863 of 2019 (Bobby vs. State of U.P.), arising out of Case Crime No. 591 of 2018, under Sections 302, 120B I.P.C., Police Station Khoda, District Ghaziabad, whereby the bail application of the juvenile Bobby has been rejected.
As per first information report on 11.08.2018 at about 07:30 P.M., Santosh Gupta, the son-in-law of the informant telephonically informed him that the deceased Deepak who was living in Himalaya Vihar in his house and was trading in the area of cosmetic whole sale, has not reached to the shop nor he is available on phone. He reached on his house and knocked the door but when the door was not opened, he climbed by roof and then entered in the house and found that the dead body of Deepak stained with blood was lying there. On the scattered looks in the room, it appears that some loot was committed in the night and his son was killed by some sharp edged weapon. Hence, the first information report against some unknown persons has been lodged. Subsequently, the name of five accused persons came in light and one of them is the present appellant who has been declared juvenile by the Juvenile Justice Board, Ghaziabad, vide its order dated 15.12.2018 filed as Annexure No. SA-1 to the supplementary affidavit, in which the age of the accused appellant has been found to be 17 years 10 months and 06 days. After declaring the appellant as juvenile, the Juvenile Justice Board has transferred the case to the Children Court under Section 18(3) of the Juvenile Justice (Care and Protection of Children) Act, 2015 and by which the bail application of the juvenile Bobby was rejected by the impugned order dated 02.04.2019.
The appellant has challenged the impugned order submitting that he is juvenile and against the law and evidence on record the impugned order has been passed. It has further been submitted that the present accused-appellant is not named in the first information report. There was no eye witness of the incident. Thee is no specific allegation against the juvenile. The involvement of the present accused-appellant/ juvenile-Bobby has been developed on the false story of theft of Rs. 2 lakhs and that too was developed after one and half months from the date of incident. It has lastly been submitted that co-accused Gaurav Yadav has already been released on bail by this court, vide order dated 16.04.2018, passed in Criminal Misc. Bail Application No. 15658 of 2019.
From perusal of supplementary affidavit filed today, it appears that on arrest being made of all the accused persons, it was stated by four accused persons who were major that because the deceased recognized them, therefore, accused Rahul and Gaurav hit on his neck by knife. The knife of accused Gaurav fell there whereas, as per statement of accused Rahul, he had hide the said knife somewhere in the open field at Delhi road. The same statement has also found mention in the arrest memo.
Learned A.G.A. has vehemently opposed and has contended that the learned trial court has rightly rejected the bail application of the accused-appellant and there is sufficient evidence against the present accused-appellant. A perusal of the statements of accused persons particularly shows that that at the time of committing the offence the present accused-appellant was associated with the other four accused persons who were adult.
Provision has been made under Section 12 of the Act that when any person accused of a bailable or a non-bailable offence and apparently a juvenile, is arrested or detained or is brought before a board then irrespective of the accusation he shall be released on bail or placed under the supervision of a probation officer or under the care of any fit institution or fit institution except when :-
"1. if there appear reasonable grounds for believing that the release is likely to bring him into association with any known criminals or
2. that it will expose him to moral, physical or psychological danger, or
3. that his release would defeat the ends of justice."
It has been held by the supreme court in Dr. Subramaniam Swamy vs Raju, 2014 (86) ACC 637 that a juvenile has to be released on bail unless the court has a reasonable ground to believe that his release will bring him into association of some known criminal, or will expose him to moral, physical or psychological danger or his release would defeat the ends of justice.
Section 15 of the Amending Act only provides for transfer of a juvenile to the Children Court for trial as an adult. Where the child has attained the age of 16 years and has been alleged to have committed heinous offence, the JJ Board is required to conduct a preliminary inquiry with regard to his mental and physical capacity to commit offence, ability to understand the consequence of the offence and the circumstances in which the offence was committed considering their physical, psychological and mental status in commission of crime. Section 18(3) of the Act provides that after making the assessment under section 15, JJ Board comes to a conclusion that there is a need for trial of the child as an adult, the Board may pass an order for the transfer of the trial of the case to the Children Court.
It is pertinent to mention here that Section 12 of the Juvenile Justice (Care and Protection of Children) Act has not been amended so far as the parameters and yardstick for granting bail to the juvenile-accused is concerned. Therefore, while rejecting the bail application of such juvenile, it cannot be the criteria that the alleged offence is of serious and heinous nature. The order must show that the grant of bail to the juvenile-accused is against his interest as there is possibility of his being associated with known criminals, or there is some short of moral, physical or psychological danger to him or there is likelihood of end of justice being defeated. All these conditions have been incorporated in law in order to ensure justice to the juvenile.
It appears from record that there was no specific role of the present accused-appellant (juvenile Bobby) and he was only associated with the accused persons. He did not cause any injury to the deceased. Moreover, the learned court below has rejected the bail application only on the basis of gravity of the offence and not by taken into consideration the yardstick provided in Section 12 of the Act, and as such, I find perversity and illegality in the impugned order, therefore, the same is liable to be set aside.
The appeal is allowed. The impugned order dated 02.04.2019 is set aside.
The juvenile, accused-appellant namely Bobby be released on bail and he be given in the custody of the mother guardian namely Smt. Reshama on her filing a personal bond and two sureties of the like amount to the satisfaction of the court concerned with undertaking that the guardian mother Smt. Reshama shall keep the juvenile away from unsocial and criminal association and will look after his education and health, keeping his mental and social status. She will also give an undertaking that on being so released on bail, the accused-appellant namely juvenile Bobby will not however indulge in commission of any crime and she will ensure his presence during trial before the court whenever so required by court.
Office is directed to transmit the certified copy of this order to the court concerned for information and its necessary compliance.
Learned counsel for the accused-appellant has submitted that the the cause list the name of accused appellant has wrongly mentioned as "Babbu" whereas his correct name is "Bobby".
Accordingly the Stamp Report is directed to correct the name of the accused-appellant as aforesaid.
Order Date :- 30.4.2019 sailesh