1. From perusal of report of Chief Judicial Magistrate, Pilibhit dated 16.05.2019, it appears that the respondent no. 2 has been served properly but today when the case called out in the revised list, none appears on behalf of respondent no. 2.
2. Heard learned counsel for the appellant and learned A.G.A.
3. This criminal appeal has been preferred against the impugned judgment and order dated 06.03.2019, passed by Additional Sessions Judge/Court No. 1, Pilibhit, in Criminal Misc. Bail Application No. 373 of 2019, arising out of Case Crime No. 03 of 2019, under Section 302 I.P.C., Police Station Bisalpur, District Pilibhit, whereby the bail application of the juvenile Kunal Sharma has been rejected.
4. Brief facts of the case are that, an first information report was lodged by one Mayaram Sharma on 02.01.2019 in respect of an incident which took place on unknown date and time. The version of the first information report is that the son of the informant went out from the house on 01.01.2019 at about 06:30 P.M. and on 02.01.2019 at 06:00 A.M., the police informed that the dead body of his son was found near the bridge of Bhasura Canal. The informant reached there and found the dead body of his son, who was shot dead and on the spot some articles like beer bottles, momos, finger chips, 4-5 fiver glasses and a country made pistol were scattered. The informant named four persons and some unknown friends of those four persons. One of the named accused is Raj. Subsequently, when the accused Raj and one more accused Shivam were arrested, they disclosed the entire facts and by their statements, the name of the present juvenile-appellant came into light. The role assigned to the juvenile is that he brought out the country made pistol which he was already having and provided it to the assailant co-accused Shivam who fired on the deceased and consequently, he fell down and died on the spot.
5. On the basis of confessional statements of two co-accused persons, the present juvenile-appellant has also become accused in this case and he was taken into custody. His bail application has been rejected by the aforesaid impugned order.
6. Feeling aggrieved by the aforesaid impugned order, this juvenile appeal has been filed on the basis that the name of the accused-appellant came in light on the basis of confessional statement of co-accused Raj. There is no eye witness and the whole case is based on the last seen evidence. Nobody has seen the juvenile in the company of the deceased nor any recovery has been made from him. There is no evidence against the appellant and he has been falsely implicated. He was not named in the first information report. The court below has rejected the bail application of the juvenile in a routine way without taking into consideration and applying the judicial mind to the provisions of Juvenile Justice Act. The impugned order is arbitrary and the same is liable to be set aside and the juvenile is entitled to be released on bail.
7. The appellant has challenged the impugned order submitting that he is juvenile. He is in juvenile home since 06.01.2019. The appellant has attached the order of Juvenile Justice Board, Pilibhit determining the age of juvenile to be 16 years 3 months and 20 days, hence, his age has been determined below 18 years and above 16 years by Juvenile Justice Board, Pilibhit, vide its order dated 08.02.2019. It has lastly been submitted that the co-accused namely Raj @ Raj Kamal Dixit on the basis of whose confessional statement the juvenile was implicated in the crime has already been released on bail by this Court vide order dated 23.05.2019, passed in Criminal Misc. Bail Application No. 20166 of 2019.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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 is again pertinent to mention here that the expression "Ends of Justice" has to be interpreted to mean the ends of juvenile justice.
13. From perusal of the impugned order, it appears that the learned children court has passed the impugned order on the basis of heinousness and seriousness of the offence and that criminal act was caused in a very planned way and juvenile was assigned the role of providing the country made pistol to the main assailant. The Juvenile Justice Act does not contain such ground, so far as the bail of the juvenile is concerned. It is also important to note that the juvenile himself has not fired on the deceased and he was simply in the company of the co-accused persons who were adult and, therefore, merely that he was having a country made pistol and allegedly at the time of incident he gave it to the main assailant will not show that the juvenile was the sole author of the crime. The impact of company of other co-accused persons who were adult cannot be ignored. There is no report of the Probation Officer which could show that there was anything adverse against the juvenile. The impugned order was simply passed on the seriousness and heinousness of the crime and as such, I find perversity and illegality in the impugned order, therefore, the same is liable to be set aside.
14. The appeal is allowed. The impugned order dated 06.03.2019 is set aside.
15. The juvenile, accused-appellant namely Kunal Sharma be released on bail and he be given in the custody of his father namely Manoj Kumar Sharma on his filing a personal bond and two sureties of the like amount to the satisfaction of the court concerned with undertaking that the guardian father shall keep the juvenile away from unsocial and criminal association and will look after his education and health, keeping his mental and social status. He will also give an undertaking that on being so released on bail, the accused-appellant namely juvenile Kunal Sharma 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.
16. Office is directed to transmit the certified copy of this order to the court concerned for information and its necessary compliance.
Order Date :- 31.5.2019 sailesh