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2001 DIGILAW 176 (HP)

JAI PAL v. STATE OP H. P.

2001-08-02

K.C.SOOD

body2001
JUDGMENT Kuldip Chand Sood, J.—Heard. It appears, on the basis of a report lodged by Surtu, father of the prosecutrix Reena, a case in terms of FIR No. 36 of 2001 dated 12.6.2001 was registered with the Police Station, Renuka, District Sirmaur, for the offences punishable under Sections 363, 366-A and 376 of the Indian Penal Code, in which the applicant-petitioner Jai Pal was arrested on 13.6.2001. 2. According to the complainant, her daughter was kidnapped by the applicant-petitioner from his home on 14.5.2001 when she "eloped” with Jai Pal. After "her elopement”, the complainant tried to search her minor daughter, who is aged about 14 years, and went to the house of the applicant-petitioner with a request to free her but she was not permitted to see her father. It is the allegation of the complainant, that her daughter was, after kidnapping, wrongfully confined in the house of the applicant. 3. Prosecutrix was recovered from the house of the applicant-petitioner by the police on 13.6.2001. She was medically examined on the same day. According to the prosecution, the prosecutrix is minor. 4. Case of the prosecution is that applicant-petitioner took away the prosecutrix by making a false promise to marry her. He also subjected her to sexual inter-course. 5. Learned counsel submits that the applicant-petitioner being less than 18 years of age, is entitled to be released on bail, in view of the provisions of Section 12 of the "Juvenile Justice Care and Protection of Children Act, 2000", hereinafter referred to as "the Act." 6. Clause (k) of Section 2 of the Act defines "juvenile" or "child" to mean a person who has not completed eighteenth year of age. Clause (1) defines "juvenile in conflict with law" to mean a juvenile who is alleged to have committed an offence. Section 4 stipulates that the State Government, notwithstanding anything contained in the Code of Criminal Procedure, 1973, may by a notification constitute Juvenile Justice Boards for a District or a group of Districts, as may be specified in the notification, for exercising the power and discharging the duties conferred or imposed on such Boards in relation to juveniles in conflict with law under the Act. Section 12 contemplates that when any person accused of a bailable or non-bailable offence, who apparently is juvenile, is arrested or detained or is brought before a Board, such person shall, notwithstanding anything contained in the Code of Criminal Procedure or in any other law for the time being in force, shall be released on bail with or without surety. However, if it appears, that such juvenile after release is likely to come in association with any known criminal or such release exposes such a juvenile to moral, physical or psychological danger, then the bail may not be granted. v 7. Section 12 of the Act may be reproduced for convenience: 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 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 a person is not released on bail under subsection (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” 8. Mr. Bisht, learned Assistant Advocate General does not dispute that the applicant-petitioner was less than 18 years of age at the time of commission of offence and continues to be so. 9. Mr. Bisht, learned Assistant Advocate General does not dispute that the applicant-petitioner was less than 18 years of age at the time of commission of offence and continues to be so. 9. In view of the provisions of Section 12, the applicant-petitioner, who apparently is juvenile, is entitled to be released on bail provided his release does not expose him to criminals or to moral, physical or psychological danger or his release may not defeat the ends of justice. 10. The applicant-petitioner was not produced before the Board, may be for the reason that the Boards has not so far been constituted, as the Act came into force on 1.4.2000 and the Juvenile Justice (Care and Protection) Act, 1986 has been repealed by this Act. 11. Sub-section (2) of Section 6 stipulates the powers conferred on the Board, under the Act, may also be exercised by the High Court and Court of Sessions, when the proceedings comes before them in appeal, revision or otherwise. 12. In the facts and circumstances of the case, this court will have power of the Board to pass, under Section 12 of the Act, an appropriate order. 13. In view of the mandate of Section 12 of the Act and in the absence of any material on record to show that the applicant-petitioner, if released, may be exposed to association with any criminal or to moral, physical or psychological danger and the fact that investigation in this case is complete except that report of FSL Junga is awaited, I direct that the applicant-petitioner be released forthwith on furnishing bonds in the amount of Rs. 5,000 with one surety in the like amount to the satisfaction of learned Chief Judicial Magistrate, Nahan, District Sirmaur. The application is disposed of. Copy Dasti on usual charges. Application disposed of.