Heard learned counsel for revisionist, learned A.G.A. for the State as well as learned counsel for private respondents.
By means of this revision, the revisionist (minor) has questioned the legality of the order dated 18.01.2019 passed by Ist Additional Sessions Judge/Special Judge, Human Right & Protection of Children from Sexual Offences Act, 2012, Pratapgarh in Criminal Appeal No.05/2019; Kuldeep Vishwakarma Vs. State of U.P. and another, whereby the Special Judge has dismissed the appeal filed by the revisionist against the order dated 08.01.2019 of Juvenile Justice Board passed in Case Crime No.171/2018, under Section 302, 201, 34 I.P.C., Police Station Udaipur, District Pratapgarh. Vide order dated 08.01.2019, Juvenile Justice Board has rejected the bail application moved by the revisionist.
Learned counsel for the revisionist has argued that the orders passed by both the courts below are illegal and arbitrary. Both the courts below have not exercised their jurisdiction properly. No plausible reason has been assigned by the courts below while refusing to release the revisionist on bail. Both the learned courts below have not considered the provision of Section 12 of Juvenile Justice Act in letter and spirit. It has further been argued that there was nothing in the report submitted by District Probation Officer to indicate that after being released on bail there is no likelihood of the revisionist coming into association with any known criminal or his release would expose him to moral, physical or psychological danger or his release would defeat the ends of justice. Despite that the learned courts below have refused to release the revisionist on bail without any supporting material on the record. It is settled law that gravity of offence will not be considered while deciding his bail application but both the courts below committed error of law while rejecting the bail application of the revisionist. The revisionist is a juvenile, so he is entitled to be benefited by the provisions of Juvenile Justice Act. On the aforesaid grounds, it has been prayed by the learned counsel for the revisionist that the revision be allowed. Impugned orders be quashed and the revisionist be released on bail.
Learned A.G.A. has opposed the revision by contending that the courts below have rightly exercised their jurisdiction by refusing the bail to juvenile and there is no need to interfere in the orders impugned.
Heard and perused the record.
The record shows that the revisionist is in custody since 26.10.2018 i.e. for around 26 months while maximum punishment is of three years. The Juvenile Magistrate has observed that the revisionist was minor on date of occurrence. There is no dispute regarding the age of the revisionist. No appeal has been filed against the aforesaid order declaring the revisionist to be a juvenile on the date of offence and the aforesaid order declaring the revisionist a juvenile has attained finality. In the aforesaid circumstance, both the courts below should have decided the bail application and the appeal in view of the provisions as provided under Section 12 of Juvenile Justice Act, which is reproduced 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, 1972 (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 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"
Thus, Section 12 of the Act lays down only three contingencies in which the bail can be refused to juvenile. These are:
(i) If his release is likely to bring him into association with any known criminal, or;
(ii)Expose him to moral, physical or psychological danger, or;
(iii)That his release would defeat the ends of justice.
In the impugned orders, the courts below have gone into the merits of the case. Learned counsel for revisionist states that even on merits, as per injury report, there is no injury suffered by the victim and, therefore, the case is doubtful. He further submits that the parents of the revisionist are alive and are decent persons and they could lookafter the welfare of the applicant.
The report of District Probation Officer is available on record, in which there is no mention of any abnormal behaviour and his physical/mental condition and social and economic status is shown as normal. Report also shows that it looks that there was lack of guidance and discipline to the revisionist (minor) and at home he needs proper guidance of his parents. The District Probation Officer has also mentioned that the revisionist has no criminal background but the learned Juvenile Magistrate without considering the report of District Probation Officer and without assigning any cogent reason, has refused to grant bail to the revisionist. Learned Appellate Court instead of applying its independent mind to the facts and circumstances of the case has also wrongly concurred with the opinion of the Juvenile Justice Board.
In Prakash Vs. State of Rajsthan, 2006, Cri Law Journal, pg. 1373, it has been observed that " at the time of consideration of bail under Section 12 of the Act, the merit or nature of offence has no relevancy. The language of the Section 12 of the Act using the word "shall" is mandatory in nature and providing non obstante clause by using the expression "notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any other law for the time being in force", he be released on bail.........................................", shows the intention of legislature to grant bail to the delinquent juvenile offender with certain exceptions. It is for the prosecution to bring on record such materials while opposing the bail and to make out any of the grounds/exceptions provided in the Section which may pursuade the Court not to release the juvenile on bail.
In Rais Vs. State of U.P., A.C.C. in Criminal Revision No. 860 of 1991 this Court has held as under:
"The word 'known' has not been used by the parliament in the section without purpose. By use of word 'known' the Parliament requires that the court must know the full particulars of the criminal with which the delinquent is likely to come into association."
In Sanjay Chaurasiya Vs. State of U.P., 2006, Crl. Law Journal, pg. 2957, it has been observed as follows:
"In case of refusal of the bail some reasonable grounds for believing above mentioned exceptions must be brought before the Court concerned by the prosecution."
The Juvenile Justice Act is a beneficial and social-oriented legislation, which needs to be given full effect by all concerned whenever the case of a juvenile comes before them. In absence of any material or evidence all reasonable ground to believe that the delinquent juvenile, if released on bail is likely to come into association with any known criminal or expose him to moral, physical or psychological danger, it cannot be said that his release would defeat the ends of justice.
Keeping in view the aforesaid legislative intent in enacting the Act and considering the welfare of the revisionist with a hope that he may recover himself after being released on bail, by associating himself to the main stream of life, it appears expedient in the interest of justice that his prayer for bail be allowed.
In view of the above discussion, the revision is allowed. Both the impugned orders passed by Juvenile Justice Board as well as Lower Appellate Court are quashed and the Juvenile Justice Board is directed to release the revisionist on bail in the custody of his father furnishing a personal bond of Rs.1,00,000/- with two solvent sureties each in the like amount to the satisfaction of the Juvenile Justice Board in Case Crime No.171/2018, under Section 302, 201, 34 I.P.C., Police Station Udaipur, District Pratapgarh, subject to condition that the father of the revisionist will take care of his education and betterment and will not allow to indulge him in any criminal activity and will keep constant check on his activities. Both the sureties are directed to be close relatives of the revisionist juvenile.
Order Date :- 11.1.2021 Shubhankar (Vivek Chaudhary, J.)