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2011 DIGILAW 108 (RAJ)

Sarwan Kumar v. The State of Rajasthan

2011-01-14

CHANDRA JOSHI

body2011
JUDGMENT 1. - By this revision petition, challenge has been made to the order dated 07.12.2010 passed by the learned Sessions Judge, Shri Ganganagar, dismissing the appeal filed by the petitioner against the order dated 02.12.2010 passed by the learned Principal Magistrate, Juvenile Justice Board, Shri Ganganagar in FIR No. 369/2010 under Section 376(2)(f) IPC registered at Police Station Vijay Nagar, District Shri Ganganagar. 2. The brief facts of the case are that complainant Page 1 of 6S.B. Criminal Revision Petition No. 25/2011 Ramakant submitted a written report at Police Station Vijay Nagar, District Shri Ganganagar to the effect that he had gone to his native place 20 days ago leaving behind her wife and daughter aged 6 years. While he was away, the accused came to his house took her to the field and committed rape with her. When the complainant came back, her wife told him about the incident, on which he made complaint to the parents of the accused, but they quarrelled with him and threatened him. On the aforesaid report, police registered FIR No. 369/2010 under Section 376(2)(f) IPC and commenced investigation. During the course of investigation, present petitioner was detained in the above FIR. Since the petitioner was minor, therefore, an application under Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2000 was filed on behalf of petitioner for grant of bail before the Juvenile Justice Board, Shri Ganganagar. The application was rejected after hearing both the sides by the learned Principal Magistrate, Juvenile Justice Board, Shri Ganganagar vide order dated 02.12.2010 on the ground that present case is of henious nature pending against the petitioner and his release is likely to expose him to physical and psychological danger and that would defeat the ends of justice. Petitioner then preferred appeal under Section 52 of the Act before the Sessions Judge, Shri Ganganagar, who by order dated 07.12.2010 dismissed the appeal and Page 2 of 6S.B. Criminal Revision Petition No. 25/2011 maintained the order of rejection of bail for the petitioner. 3. Learned counsel for the petitioner submitted that the gravity of the offence committed cannot be a ground to decline the bail to juvenile. He further contended that the courts below without taking into consideration the mandatory provisions of the Act, in a cursory manner declined bail to the petitioner. 3. Learned counsel for the petitioner submitted that the gravity of the offence committed cannot be a ground to decline the bail to juvenile. He further contended that the courts below without taking into consideration the mandatory provisions of the Act, in a cursory manner declined bail to the petitioner. He further contended that the orders of the courts below are not based on definite facts they are based on surmises conjectures. 4. On the other hand, learned Public Prosecutor defended the order of the Juvenile Justice Board as well as the order passed by the learned appellate court. 5. I have carefully considered the submissions made before me and also perused the provisions of the Act. 6. It appears that for protection of juveniles, Special Act has been enacted. Section 12 of the Act indicates that if a juvenile is arrested or detained or appears or is brought before a Board, such person shall be released on bail with or without surety or placed under the supervision of a Probation Officer or under the Page 3 of 6S.B. Criminal Revision Petition No. 25/2011 care of any fit institution. 7. In regard to gravity and nature of the offence is concerned, this court in the case of Bhanwar Lal v. State of Rajasthan, 2007(1) Cr.L.R. (Raj.) 254 in para 3 has observed that the language of Section 12 of the Act using the word "shall", is mandatory and it provides non-obstante clause by using the expression "notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any other law for the time being in force", which conveys the intention of the legislature to grant bail to the juvenile irrespective of nature or gravity of the offence alleged to have been committed by him and the bail can be denied only in the case where 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. 8. In view of the provisions contained in the Act, the question which arises for consideration is as to whether the bail was rightly declined to the accused-petitioner under Section 12 of the Act and the appeal preferred against the order declining bail has rightly been rejected. 9. 8. In view of the provisions contained in the Act, the question which arises for consideration is as to whether the bail was rightly declined to the accused-petitioner under Section 12 of the Act and the appeal preferred against the order declining bail has rightly been rejected. 9. After carefully examining the provisions of the Act, I do not find that in both the impugned orders no exceptional circumstance as indicated in Section 12 of the Act to decline bail to the juvenile is made out. The learned Magistrate as well as the learned appellate court have not properly appreciated the mandatory provisions of Section 12 of the Act and other provisions in relation to the juvenile and merely on the basis of apprehension the bail has been declined. In my opinion, the Act being a beneficiary and social oriented legislation should be given full effect by all concerned whenever the matter relating to juvenile comes to consideration before them. 10. The net result of the above discussion is that the revision petition is allowed, the order passed by the learned Principal Magistrate, Juvenile Justice Board, Shri Ganganagar as well as the order passed by the learned appellate court, i.e. learned Sessions Judge, Shri Ganganagar declining bail to the accused-petitioner are hereby set aside. It is directed that the accused-petitioner Sarwan Kumar S/o Ram Kishan shall be released on bail on furnishing a personal bond by his natural guardian (father) in the sum of Rs. 10,000/- and a surety in the like amount to the satisfaction of the Principal Magistrate, Juvenile Justice Page 5 of 6S.B. Criminal Revision Petition No. 25/2011 Board, Shri Ganganagar with the stipulation that on all subsequent dates of hearing he shall appear before the said court or any other court during pendency of inquiry in the case and that the guardian shall keep proper look after of the delinquent child and keep him away from the company of known criminals.Revision Allowed. *******