Bhoorey Alias Rajesh Singh vs The State Of U.P. And Another

Court No. 53 Criminal Revision No. 1191 of 2008 *** Bhurey alias Rajesh Singh Vs. State of U.P. and another. Hon'ble D.R. Azad, J The present Criminal Revision is directed against the judgment and order dated 28.3.2008 passed by the learned Sessions Judge, Bareilly in Criminal Appeal No. 81 of 2008 and the order dated 28.2.2008 passed by the Juvenile Justice Board, whereby the bail application on behalf of the Juvenile in case Crime No. 582 of 2007, under Sections 376/511 I.P.C., Police Station Binavar, District Budaun has been rejected. The case of the prosecution, in brief, is that the accused­ applicant on 1.11.2007 at about 4 p.m. committed rape with the daughter of the informant, who was only 6 years old. The accused­appellant was challaned by the police in the case. Accused claimed himself Juvenile offender of the age below18 years. Latter on, an application to release the accused­ revisionist on bail was moved before the Juvenile Justice Board but the same was rejected by the Board vide its order dated 28.2.2008.

Aggrieved by the said order, the revisionist­applicant preferred an appeal before the learned Sessions Judge, Bareilly being Crl. Appeal No. 81 of 2008. The said appeal was rejected by the learned Sessions Judge, Bareilly on 28.3.2008. Aggrieved by both the orders dated 28.2.2008 passed by the Juvenile Justice Board as well as the order dated 28.3.2008 passed by the learned Sessions Judge, Bareilly, present Criminal Revision has been preferred before this Court. I have heard Sri Babu Ram Sharma, learned counsel for the revisionist­applicant and the learned A.G.A. for the State and perused the judgement of the Juvenile Justice Board as well as learned Sessions Judge,Bareilly and records of the case . It is argued by the learned counsel for the revisionist that the impugned order passed by the learned lower court is wholly illegal as bail to the Juvenile cannot be refused on the ground that he has committed heinous offence. It is further contended that the bail application of the Juvenile is to be considered in accordance with the provisions of Section 12 of the Act and bail can be refused if the release of Juvenile is likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice and since the bail to the revisionist, in the instant case, has been refused on the ground that he has committed heinous crime hence, the impugned order being wholly illegal should be set aside and the revisionist should be admitted to bail, as no material has been brought on record to show that the release of the accused­revisionist is likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice . Per contra, learned Addl. Government Advocate argued that the accused­ revisionist who was more than 17 years of age, has committed rape with 6 year aged girl. The offence is of grievous nature and in such type of cases, accused should have not been released on bail.

For appreciating the argument of the parties, I would like to reproduce the provisions of bail incorporated under Section 12 of the Juvenile Justice ( Care and Protection of Children) Act, 2000 ( hereinafter referred to as the 'Act' ). It runs as under:­ " 12. Bail of Juvenile:-(1) When any person accused of a bailable or non-bailable offence, and apparently a Juvenile, is arrested or detained or appears or is brought before a Board, such person shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of1974) ( or in any other law for the time being in force, be released on bail with or without surety or placed under the care of any fit institution or fit person) but he shall not be so released if there appear reasonable grounds for believing that the release is likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice.

(2) When such person having been arrested is not released on bail under sub-section (1) by the officer in- charge of the police station, such officer shall cause him to be kept only in observation home in the prescribed manner until he can be brought before a Board. (3) When such person is not released on bail under sub-section (1) by the Board, it shall, instead of committing him to person make an order sending him, to an observation home or a place of safety for such a period during the pendency of the inquiry regarding him as may be specified in the order."

According to Sub­section (i) of Section 12 of the Act , a Juvenile shall be released on bail with or without surety notwithstanding anything contained in the Code of Criminal Procedure, 1973 or in any other Law for the time being in force. The first part of the provisions appears to be mandatory in nature for release of Juvenile on bail but the second part also equally appears to be mandatory for refusing the bail, as Juvenile shall not be so released if there appears reasonable ground for believing that;

1. release of Juvenile is likely to bring him into association with any known criminal, or

2. expose him to moral, physical or psychological danger, or

3. that his release would defeat the ends of justice.

In the present case, the accused­revisionist was declared Juvenile by the Juvenile Justice Board, Bareilly vide order dated 7.2.2008, hence, it was obligatory for the Board to decide the bail application of the applicant in accordance with the provisions of Section 12 (i) of the Act. The Board has rejected the bail of the Juvenile without assigning any reason, as to how the release of the revisionist would defeat the ends of justice. The Board has not discussed the material on the basis of which the aforesaid finding has been recorded and come to the conclusion that the release of the revisionist is likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice, then that material ought to have been discussed in the order, but the Board has not discussed any reason as to how the release of the revisionist would defeat the ends of justice.

The Board or the appellate court requires to give reason to show that the release of the Juvenile is likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice . As mentioned here in above, the Juvenile Justice Board Bareilly has not given any reason in support of its order dated 28..2.2008 , whereby the bail application of the revisionist was rejected, as such, the order dated 28.2.2008 passed by Juvenile Justice Board is wholly illegal, which cannot be sustained.

The lower appellate court also has not assigned any reason for declining bail to the revisionist and the order dated 28.2.2008 passed by the Juvenile Justice Board has been confirmed by the learned lower appellate court only saying that it was found by the learned trial court that the ends of justice would be defeated, if the revisionist is released on bail. Hence, there is no reason to disbelieve this finding of the learned trial court. The lower appellate court also was under obligation to consider the provisions of Section 12(i) of the Act while declining the appeal against the order of Juvenile Justice Board dated 28.2.2008. Section 12(i) of the Act itself lays down that the bail to the Juvenile has to be granted notwithstanding anything contained in the Code of Criminal Procedure or in any other law for the time being in force. It means that the gravity of offence is not relevant factor in the case of the bail of the Juvenile and if any of the 3 conditions mentioned in the IInd Part of Section 12

(i) of the Act does not exists then the Juvenile has to be released on bail, even if he has committed heinous crime. Unfortunately, in the instant case, the lower appellate court has also not given any reason to show that the release of Juvenile is likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice . Consequently, I am of the view that the order passed by the Juvenile Justice Board and the appellate court are improper and the revisionist should have been granted bail as there was no material to bring his case for rejection under Section 12 of the Juvenile Justice ( Care and Protection of Children) Act , 2000.

The Revision is allowed. Impugned order dated 28.2.2008 passed by the Juvenile Justice Board and the order dated 28.3.2008 passed by the learned Sessions Judge, Bareilly in Appeal No. 81of 2008 are set aside.

Let the revisionist Bhoorey alias Rajesh Singh be released on bail in Case Crime No. 582 of 2007, under Sections 376/511 I.P.C., Police Station Binavar, District Budaun on his executing two sureties each of Rs. 50,000/­ to the satisfaction of the Principal Magistrate, Juvenile Justice Board, Bareilly. One of such securities will be of the father of the child and if he is not alive then his near relative.

Dt: 3.2.2010 n.u.