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2005 DIGILAW 438 (RAJ)

Raj Mal Teli v. State of Rajasthan

2005-02-10

H.R.PANWAR

body2005
JUDGMENT 1. - By the instant revision petition under Section 53 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short, 'the Act' hereinafter), the petitioner has challenged the Order dated 22.12.2004 passed by the Sessions Judge, Udaipur (for short, the Appellate Court') in Criminal Appeal No. 180/2004, by which the appeal filed by accused-petitioner Rajmal has been dismissed and the Order dated 20.12.2004 passed by the Principal Magistrate, Juvenile Justice Court, Udaipur (for short, "the Juvenile Court") in FIR Case No. 174/2004, Police Station, Vallabhnagar dismissing the bail application of the petitioner, has not been interfered with. 2. The facts of the case, relevant and necessary for disposal of the criminal revision petition, are that on 15.12.2004, at about 5:30 PM, complainant Ashok Vyas lodged an FIR with Police Station, Vallabhgarh, stating therein that when he returned from village, his wife told him that the accused-petitioner committed rape on his daughter Kumari Kiran Vyas, aged about 9 years, who is dumb and suffering from mental retardation of a profound nature. The investigation ensued and the police submitted challan against the petitioner for the offence under Section 376 IPC. One Shobha Lal, the maternal-uncle, claiming himself to be the guardian of the petitioner, filed an application for bail under Section 12 of the Act, which stood dismissed by the trial court vide order dated 20.12.2004. Being aggrieved by the order impugned dated 20.12.2004, an appeal was preferred by said Shobha Lal before the Appellate Court for enlarging the petitioner on bail, which has been dismissed vide impugned order dated 22.12.2004. 3. I have heard learned counsel for the petitioner and the Public Prosecutor for the State. Perused the orders impugned passed by the courts below. 4. Sub-clause (k) of Section 2 of the Act defines "juvenile" or "child", which reads as under:- "Sec. 2(k). -"Juvenile" or "child" means a person who has not completed eighteenth year of age." Section 12 of the Act reads as under:- "Section 12. Perused the orders impugned passed by the courts below. 4. Sub-clause (k) of Section 2 of the Act defines "juvenile" or "child", which reads as under:- "Sec. 2(k). -"Juvenile" or "child" means a person who has not completed eighteenth year of age." Section 12 of the Act reads as under:- "Section 12. Bail to 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 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 enquiry regarding him as may be specified in the order." 5. From the perusal of Section 12 of the Act, it is clear that a delinquent juvenile ordinarily has to be released on bail irrespective of nature of offence alleged to have been committed by him, unless it is shown by evidence that if he is released on bail, there appear reasonable grounds for believing that the release of delinquent 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. 6. Taking the facts of the instant case, as per the medical report, the age of the petitioner, at the time of commission of alleged crime, was years and his date of birth has been shown as 22.7.1989. 6. Taking the facts of the instant case, as per the medical report, the age of the petitioner, at the time of commission of alleged crime, was years and his date of birth has been shown as 22.7.1989. Thus, there may not be any dispute that the petitioner is a juvenile. The revision petition has not been filed by the father or mother, who are the natural guardians of the petitioner, but it has been filed through Shobha Lal alleging himself to be the guardian of the petitioner. Clause (2) of Section 4 of the Guadians and Wards Act, 1890 defines the term 'guardian' to mean a person having the care of the person of a minor or his property or both of his person and property. Clause (b) of Section 4 of the Hindu Minority and Guardianship Act, 1957 contained identical words, but then clause (6) in its inclusive clause says that the term 'guardian' includes a natural guardian, testamentary guardian and certificated guardian. Both the parents of the petitioner are alive but despite the fact that they are the natural guardians of the petitioner, either of them has come forward for the release of the petitioner on bail for the reasons best known to them. However, the possibility cannot be ruled out that the parents of the petitioner may not have any control over his activities and in such an eventuality, the chances of his coming into the association with any known criminal or exposing him to moral, physical or psychological danger cannot be ruled out. 7. There is serious allegation of committing rape by the petitioner on a mentally retarded and dumb minor girl aged about 9 years. The Age and Sex Examination Report issued by the R.N.T. Medical College & General Hospital, Udaipur shows that the petitioner is potent for performing sexual intercourse. There is direct evidence of the mother of the prosecutrix that she saw the petitioner committing rape upon her minor, dumb and mentally retarded daughter Kumari Kiran, aged about 9 years. There is prima facie evidence .against the petitioner that he committed rape on the prosecutrix. If bail is allowed to such a juvenile offender, it may result in repeating such heinous offences by other teen-agers and the ultimate result would result in ruining the life of minor girls and result in increasing trend of such offences. There is prima facie evidence .against the petitioner that he committed rape on the prosecutrix. If bail is allowed to such a juvenile offender, it may result in repeating such heinous offences by other teen-agers and the ultimate result would result in ruining the life of minor girls and result in increasing trend of such offences. Further, as per the report of the Probation Officer, petitioner is living with his mother and his father started living separately when the petitioner was aged about four to five months and kept a concubine at his house. Thus, there are reasonable grounds for believing that the release of the petitioner is likely to bring him into the association with any known criminal or expose him to moral, physical or phychological danger and his release would defeat the ends of justice. Both the courts below, while dismissing the bail application, have assigned cogent and convincing reasons. In view of the concurrent findings of the courts below and keeping in view the aforesaid factual matrix of the case, I do not find any error, illegality or perversity in the order impugned, which may warrant interference therein. 8. Consequently, the revision petition lacks merit and it is dismissed accordingly. *******