State of U.P.
2. Suman D/o Jiya Lal Resident of Village Nariyawa, P.S. Poora Qalauder, District Faizabad through her father Jiya Lal Counsel for the Revisionist: Ms. Sapana Verma Counsel for the O.P.: AGA and Sri Vijyendra Prakash Tripathi Hon'ble Vishnu Chandra Gupta, J This criminal revision under Section 53 of Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the 'JJ Act') has been filed against the order dated 16.01.2014 passed by learned Sessions Judge, Faizabad in Criminal Appeal (Juvenile) No.163 of 2013 (Paplu @ Amit Kumar Vs. State of U.P.) arising out of Case Crime No.400 of 2013, under Sections 376 (2)(g) of IPC and Section 3/4 of Protection of Children from Sexual Offences Act, Police Station Pura Kalander, District Faizabad whereby the appeal was dismissed and order dated 06.12.2013 passed by learned Principal Magistrate, Juvenile Justice Board, Faizabad rejecting the prayer of revisionist to release on bail under section 12 of JJ Act, has been affirmed.
Heard Ms. Sapana Verma, learned counsel for the revisionist, learned A.G.A. and Sri Vijyendra Prakash Tripathi, learned counsel for the opposite party no.2 and also perused the record.
The revisionist is a declared juvenile in conflict with law. He has been sent by police to face trial under Section 376 (2)(g) IPC and section 3/4 of Protection of Children from Sexual Offences Act. The prayer of the revisionist under Section 12 of JJ Act for release on bail was declined by learned Principal Magistrate, Juvenile Justice Board vide order dated 06.12.2013. Aggrieved by the order dated 06.12.2013, the revisionist filed appeal under section 52 of JJ Act before learned Sessions Judge, Faizabad but the same has also been dismissed vide impugned order dated 16.01.2014.
The prayer of the revisionist for release on bail has been rejected on two grounds.
The first ground for rejection is that the accused had committed crime when he was 16 years, 11 months and 25 days old and was conscious of his illegal criminal activity and as such, the case falls in one of the clauses of exception as provided under Section 12 of JJ Act .
The second ground is that in case, the revisionist is released on bail, he will push him into moral, physical and psychological danger and would result in miscarriage of justice and if he released on bail, he will come in contact with known criminals as the natural guardian / father is not in a position to control the revisionist.
It has been submitted by the learned Counsel for the revisionist that the material on which Principal Magistrate, Juvenile Justice Board or learned Sessions Judge formed his opinion and the reasons to believe for refusing to release on bail to revisionist has not been discussed in its order nor there is any reference of such material in the impugned orders. The prosecution also failed to bring that material on record of this Court too. Moreover there is nothing adverse against the revisionist in the report of Probation Officer.
Learned AGA as well as the counsel for informant try to support the impugned order and stated that basis on which such opinion has been formed by Principal Magistrate and learned Sessions Judge is available on record. Learned AGA while opposing the bail prayer of the revisionist pointed out that this fact is not denied and also mentioned in the impugned order that one of the co-accused escaped from observation home and in case, the revisionist is released on bail, the possibility of this fact cannot be ruled out that the revisionist shall come in contact with escaped co-accused. Therefore, it could not be said that the orders impugned have no basis.
No material as alleged by learned AGA has been filed along with counter affidavit nor the details of which has been given therein. Of course, If learned Magistrate has reason to believe that circumstances as mentioned in the impugned orders exist, the prayer for bail to a juvenile cannot be considered. But if the same is based on presumptions and conjectures, the order refusing bail would have no legs to stand and could not be allowed to sustain.
Provision to bail of juvenile are given in section 12 of JJ Act which reads 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 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.
(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 an 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 prison, make an order sending him to an observation home or a place of safety for such period during the pendency of the inquiry regarding him as may be specified in the order."
In Jitendra Singh v. State of U.P.,(2013) 11 SCC 193, at page 212 the Honble Supreme Court observed :
"39 The provision dealing with bail (Section 12 of the Act) places the burden for denying bail on the prosecution. Ordinarily, a juvenile in conflict with law shall be released on bail, but he may not be so released if there appear reasonable grounds forbelieving 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."
In view of above and provisions contained in section 12 of JJ Act, grant of bail is rule but declining the bail to juvenile is exception. The exceptions mentioned herein above could only be given effect to when there are reasonable ground to believe exist. A reasonable belief provided points to existence of such facts and circumstances as are sufficient to justify the satisfaction that release is likely to bring the juvenile in conflict with law into association with any known criminal or likely to expose him to moral, physical or psychological danger or would defeat the ends of justice.
In accordance with section 12 of JJ Act the ground which may be considered while declining the bail to juvenile in conflict with law are as follows:-
I.If there appears reasonable grounds for believing that release is likely to bring the juvenile in conflict with law into association with any known criminal, or II.If there appears reasonable grounds for believing that release is likely to expose him to moral, physical or psychological danger, or III.If there appears reasonable grounds for believing that release of juvenile in conflict with law would defeat the ends of justice The term "known Criminal" has not been defined in JJ Act or Rules framed thereunder. It is well settled rule of interpretation that in the absence of any statutory definition of any 'term' of a particular statute in which it is used, the same must be assigned a meaning as is commonly understood as held in U. Suvetha v. State, (2009) 6 SCC 757.
Thus, to term "known criminal" used in section 12 of JJ Act must assigned a meaning as is commonly understood. Ordinarily it would include a person who habitually commits crime, or person with bad criminal antecedents or criminal history, gangsters, hardened criminals, those who repeatedly commits a particular type of crime etc. As such person, may be a co-accused to the juvenile in conflict with law, who has been involved in a crime but has no criminal history or criminal antecedents to his credit cannot be termed as " known criminal".
In view of the above the heinousness or gravity of offence and the age in which the juvenile commits crime are not the grounds for declining the bail to a juvenile in conflict with law. The absconding of a co-accused from observation home is also not a ground for declining the bail to the other juvenile accused who did not join hands with such accused in his process of absconding from observation home.
Nothing has been brought on record or referred to in counter affidavit as to how the revisionist after release will likely to expose to moral, physical or psychological danger or would defeat the ends of justice. Mere use of the phraseology in section for declining the prayer to release on bail to juvenile in conflict with law without any reasonable belief as discussed herein above would amount to illegal exercise of jurisdiction by the authority.
Having considered all the facts and circumstances of this case and in view of the discussions made herein above I am of the considered opinion that the impugned orders of Principal Magistrate Juvenile Justice Board and learned Sessions Judge are not sustainable and are liable to be set aside.
Accordingly, the revision is allowed. The impugned orders dated 06.12.2013 and 16.01.2014 are set aside. The revisionist Paplu alias Amit Kumar be released on bail on executing a personal bond of guardian or person or institution in whose favour placement of the juvenile is ordered with two sureties in the like amount to the satisfaction of Principal Magistrate, Juvenile Justice Board. He may also pass order while releasing the revisionist on bail for his placement under the supervision of a Probation Officer or under the care of any fit institution or any other fit person as he thinks fit.
Let a copy of this order be sent to the the Principal Magistrate Juvenile Justice Board, Faizabad for compliance of the order. Office to ensure compliance. The revision is accordingly disposed of finally.
Dated: 17.11.2014 akverma