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2006 DIGILAW 44 (CHH)

CHHOTUBABU v. STATE OF C. G.

2006-01-24

S.K.SINHA

body2006
ORDER Shri Sunil Kumar Sinha, J. :- 1. A short question arises for consideration in these two Miscellaneous Applications as to what is meant by using phraseology "reasonable grounds for believing" in sub-section (1) of section 12 of the Juvenile Justice (Care and Protection of Children) Act 2000 (hereinafter referred to as the Act)? 2. The brief facts are that the applicant is a "juvenile", aged about 13 years. He has been arrested in connection with Crime Nos. 398/2003 and 399/ 2003 both registered under sections 147, 148, 149,307,302, 326 and 460 of the I.P.C. and section 25 & 27 of the Arms Act at Police Station Mahasamund, Distt. Mahasamund (C.G). He is in custody since 11.6.2005 and two Criminal Cases vide No.218/2005 and 219/2005 are pending before the Juvenile Justice Board, Raipur, under the aforementioned sections of the I.P.C. and the Arms Act. Two applications for grant of bail in both the criminal cases were filed on behalf of applicant, which were considered by the Board on 26.7.2005 and the Board rejected both these applications on the ground that in case the applicant is released on bail, there is a possibility that he may be exposed to physical or psychological danger. The Board passed the aforesaid orders stating that since two incidents took place on the same day and along-with the applicant, other family members have also been arrested, therefore, the complainant party may cause some serious incident against the juvenile. 3. Therefore, two bail applications were filed before the Sessions Court and the said Court also dismissed these applications in two different bail petitions. The perusal of the order would show that the Sessions Court did not look into the provisions of Section 12 of the Act and passed its order on the merits of the case and dismissed the petitions holding that prima facie, there appears to be involvement of this applicant also in commission of the serious crime and he was not entitled to be released on bail. It is after this, the two Misc. Criminal Cases have been filed before this Court. 4. I have heard learned counsel for the parties at length and have also perused the orders passed by the Sessions Court as well as the Board. 5. It is after this, the two Misc. Criminal Cases have been filed before this Court. 4. I have heard learned counsel for the parties at length and have also perused the orders passed by the Sessions Court as well as the Board. 5. The submission of learned counsel for the applicant is that under the mandatory provisions of section 12 of the Act, the release of the juvenile can be refused if anyone of the three grounds mentioned in this section are available. She vehemently argued that merely writing in the order that the release would expose the juvenile to moral, physical or psychological danger would not be sufficient and there must be some reasonable ground for holding like this and for refusing the bail. She further argued that no such material was available before the Board or the Sessions Court to hold like this and pass the order for refusal of bail to the juvenile. 6. Section 12 of the Act deals with the matter of release on bail of a Juvenile. Sub-section (1) of section 12 is the substantive provision for release which is quoted as Under: 12. Bail of juvenile. - (1) When any person accused of a bailable or nonbailable 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 of1974) 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. 7. The use of word "shall" by the Legislature in section 12 of the Act is of great importance. As interpreted earlier, the word "shall" raises a presumption that the particular provision is imperative, but this prima facie inference may be rebutted by other considerations such as object and scope of enactment and the consequences flowing from such construction. The word "shall" has been construed as ordinarily mandatory, but it is some times not so interpreted if the context or the intention otherwise demands. The word "shall" has been construed as ordinarily mandatory, but it is some times not so interpreted if the context or the intention otherwise demands. Reference may be made to the decision rendered by the Apex Court in the matter of M/s. Sainik Motors, Jodhpur and others Vs. State of Rajasthan. Further it has been held by the Supreme Court in the matter of State of U.P. and others Vs. Babu Ram Upadhyay that when a statute uses the word "shall", prima facie, it is mandatory, but the Court may ascertain the real intention of the Legislature by carefully attending to the whole scope of the statute. For ascertaining the real intention of the Legislature the Court may consider, inter alia, the nature and the design of the statute, and the consequences which would follow from construing it the one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstance, namely, that the statute provides for a contingency of the noncompliance with the provisions, the fact that the non-compliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow there from, and, above all, whether the object of the legislation will be defeated or furthered. The Supreme Court in the matter of Govind Lal Chaggan Lal Patel Vs. The Agriculture Produce Market Committee and others also held that the governing factor is the meaning and intent of the Legislature, which should be gathered not merely from the words used by the Legislature but from variety of other circumstances and considerations. In other words, the use of the word "shall" or "may" is not conclusive on the question whether the particular requirement of law is mandatory or directory. But the circumstance that the Legislature has used a language of compulsive force is always of great relevance and in the absence of anything contrary in the context indicating that a permissive interpretation is permissible, the statute ought to be construed as peremptory. One of the fundamental rules of interpretation is that if the words of a statute are themselves precise and unambiguous, no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the Legislature. 8. One of the fundamental rules of interpretation is that if the words of a statute are themselves precise and unambiguous, no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the Legislature. 8. I have examined the scope of section 12 of the Act discussing the above provisions of interpretation of the word "shall" used by the Legislature in section 12 in the matter of Bharat @ Bhrat Vs. State of Chhattisgarh and my conclusion was that ordinarily the Board is under obligation to release the juvenile on bail with or without surety, but the juvenile shall not be so released in certain circumstances as the latter part of section also uses the word "shall" imposing certain mandatory conditions prohibiting the release of the juvenile by the Board. These conditions are as follows: (i) if there appears reasonable grounds for believing that the 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. 9. A bare perusal of Section 12(1) of the Act would show that the conditions on which the release has been mandated to be prohibited are to be applied, when there appears reasonable grounds for believing about the existence of conditions referred to above. What is meant by the words "reasonable grounds for believing" used in Section 12 or what would amount so is a matter of consideration. The normal rule of interpretation is that general words in a statute must receive a general construction unless there is something in the Act itself such as the subject matter with which the Act is dealing or the context in which the said words are used to show the intention of the Legislature that they must be given a restrictive meaning. Since general words have ordinarily a general meaning, the first task in construing such words, as in construing any word, is to give the words their plain and ordinary meaning and then to see whether the context or some principle of construction requires that some qualified meaning should be placed on those words. Please see Principles of Statutory Interpretation by Justice G.P. Singh, Sixth Edition, 1996 Chapter 5, page 294. Please see Principles of Statutory Interpretation by Justice G.P. Singh, Sixth Edition, 1996 Chapter 5, page 294. It has been laid down in the matter of Empress Mills, Nagpur Vs. Municipal Committee, Wardha that "it is a recognized principle of construction, that general words and phrases, however wide and comprehensive they may be, in their literal sense must usually be construed as being limited to the actual object of the Act". 10. The expression used by the Legislature in section l2 like "reasonable grounds for believing" is not a new one to the gallery of the statutes. The expression "reason to believe", like "reasonable grounds for believing" in the present Act has been used by the Legislature under section 438 of the Code of Criminal Procedure. The Apex Court in the matter of Adri Dharan Das Vs. State of W. B. while dealing with a matter u/s 438 of Cr.P.C, held that the use of expression "reason to believe" shows that the belief that the applicant may be arrested must be founded on reasonable grounds. A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant's apprehension that he may be arrested is genuine. Mere "fear" is not "belief" for which reason it is not enough for the applicant to show that he has some sort of vague apprehension that someone is going to make an accusation against him in pursuance of which he may be arrested. Grounds on which the belief of the applicant is based that he may be arrested in non-bailable offence must be capable of being examined. If an application is made to the High Court or the Court of session, it is for the court concerned to decide whether a case has been made out for granting of the relief sought. 11. The exact phraseology of words "reasonable grounds for believing" has also been used in section 37 of the Narcotic Drugs and Psychotropic Substances Act. In sub-section (1) of section 37, the provisions of the Act are quoted as under: 37. 11. The exact phraseology of words "reasonable grounds for believing" has also been used in section 37 of the Narcotic Drugs and Psychotropic Substances Act. In sub-section (1) of section 37, the provisions of the Act are quoted as under: 37. Offences to be cognizable and non-bailable.-(l) Notwithstanding anything contained in the Code of Criminal Procedure, 1973( 2 of 1974),- (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless- (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. 12. The Apex Court while dealing with the matter under the aforesaid Act in the case of Narcotics Control Bureau Vs. Dilip Prahlad Namade held that the expression "reasonable grounds" mean something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The apex court further held that the reasonable belief contemplated in the aforesaid provision requires existence of such facts and circumstances as are sufficient in themselves to justify the satisfaction that the accused is not guilty of the alleged offence and he is not likely to commit any offence while on bail. 13. Therefore, the probable logical meaning of using of phraseology like "reasonable grounds for believing" in Section 12(1) of the Act 2000 clearly indicates that the "reasonable grounds for believing" is not the same thing as "suspicion" or "doubt" and the guess work of the Board and is something higher than that. It is more than prima facie grounds and it must contemplate substantial probable cause for believing the Board that the release of the juvenile is likely to put him under either of the three conditions mentioned in Section 12(1) of the Act and the provision requires the existence of such facts and circumstances as are sufficient in themselves worth reasonably believing by a Court of law. Unless there appears to be existence of such circumstances, in a particular case, the mandate of Legislature commanding the prohibition of release of juvenile cannot be exercised by the Board. Whether such grounds are existing or not is a matter of fact to be examined with reference to each particular case. (Emphasis supplied) 14. It has been held by a learned Single Judge of the Allahabad High Court in the matter of Lavkush Chamar @ Lavkushseth Vs. State of U.P. that release of a juvenile no doubt can be refused if anyone of these grounds exist. The learned single judge held that it should not be merely a guess work of the Court but it should be based on some evidence may be police report, or the report of the probation officer or any other such evidence which can substantiate the refusal of release. On the similar logic, the Rajasthan High Court in the matter of Murari Vs. State of Rajasthan released a juvenile holding that no material is there on record to support that the conditions referred to above in section 12 of the Act, which disentitle the accused applicant from granting bail is available against this accused (para 7). The Allahabad High Court also held in the matter of Deepak Kumar Vs. State of U.P. that it is not that the mere quoting of few lines from this Act, the bail should be refused as the impugned order of the said case does not show any such ground. The High Court further held that the impugned order was passed in utter disregard of section 12 of the Act, and it no where shows that release would defeat the ends of justice and more over there is also nothing to show as to how the release would defeat the ends of justice. 15. If we examine the cases in hand, it would be apparent that though the Board has observed in the order that the release of the juvenile may expose him to physical or psychological danger, but the order no where shows as to how he would be exposed to such dangers and on the basis of which material the Board had come to this conclusion. It appears that the aforesaid order was simply a guess work of the Board without being based on any material on record. It appears that the aforesaid order was simply a guess work of the Board without being based on any material on record. Even the Sessions Court did not touch this point and ultimately the bail of the juvenile was refused by it on the merits of the case without being taken note of Section 12(1) of the Act and completely ignoring that the considerations which are germane for granting or refusing bail to the persons who are not juvenile delinquents shall not come into play for granting or refusing bail to them. Even before' this Court also, the prosecution could not put any material on the basis of which, it may be inferred that the release would be impermissible under the law as mandated by latter part of Section 12(1) of the Act. 16. In the result, the petitions - M.Cr.C. No. 2708/2005 and M.Cr.C. No. 2709/2005 are allowed. It is directed that the juvenile namely Chhotu Babu shall be released on bail on furnishing a bond in sum of Rs.10,000/- with one surety in the like amount to the satisfaction of the concerned Board in each case for appearance of the juvenile on each date of hearing till the disposal of the trials. The bail bond shall be furnished by the father/guardian of the juvenile, as the case may be. Petitions Allowed.