Research › Search › Judgment

Patna High Court · body

2011 DIGILAW 2342 (PAT)

Chandan Kumar v. State of Bihar

2011-11-24

AMARESH KUMAR LAL

body2011
ORDER : Amaresh Kumar Lal, J. 1. The accused-petitioner has preferred this revision application under Section 53 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the 'Act') against the ORDER :dated 18.10.2011 passed by the learned Additional Sessions Judge-III, Patna City in Cr. Appeal No. 240 of 2011 by which the ORDER :dated 30.7.2011 passed by the learned Juvenile Justice Board, Patna in JJB Case No. 168 of 2011 arising out of Gopalpur P.S. Case No. 47 of 2011 under Section 302/34 I.P.C. and 27 of the Arms Act has been confirmed and the prayer for bail under Section 167(2) Cr.P.C. has been rejected. 2. Learned counsel for the petitioner submits that it is an admitted fact that the petitioner surrendered in Gopalpur P.S. Case No. 47 of 2011 on 29.4.2011 in the Court of learned Chief Judicial Magistrate, Patna and thereafter finding him juvenile he was remanded to the Juvenile Justice Board, Patna at Patna City and the case was separated and it was sent to the learned Juvenile Justice Board. The Investigating Officer has not submitted charge-sheet against the petitioner within 90 days as the statutory period prescribed under Section 167 Cr.P.C. and 90 days completed on 28.7.2011 and thus the petitioner filed a petition on 29.7.2011 under Section 167(2) Cr. P.C. for the release on bail. The charge-sheet was submitted on 30.7.2011 after the period of 90 days as such the petitioner was entitled to bail but no benefit under Section 167(2) Cr.P.C. has been given by the learned Juvenile Justice Board nor by the appellate court on the ground that the release of the petitioner will be under the provision of Section 12 of the Act. He has further submitted that there is no bar in the Act that the benefit under Section 167(2) will not be applicable in case of Juvenile. 3. Learned counsel for the State could not controvert the contention of the learned counsel for the petitioner. 4. He has further submitted that there is no bar in the Act that the benefit under Section 167(2) will not be applicable in case of Juvenile. 3. Learned counsel for the State could not controvert the contention of the learned counsel for the petitioner. 4. After hearing learned counsel for both the parties and on perusal of the impugned ORDER :as well as other material on the record it appears that the learned appellate court has found as follows:-- From the record of learned court below, it is manifest that the appellant is alleged to have committed an offence under Section 302 I.P.C. He on 29.4.2011 surrendered in the court below and claimed himself to be aged about 14 years and also filed a School Transfer Certificate alongwith an affidavit sworn by father of the appellant. Learned C.J.M., Patna considering these things ORDER :ed to send the Juvenile in the Remand Home, Gaighat, Patna City and he also ORDER :ed to separate the record of the appellant and transmit the same to the Juvenile Justice Board, Gaighat, Patna. This indicates that learned CJM, Patna considered the appellant a Juvenile under the age of 18 years and then he passed such an ORDER :. It further transpires that on 29.7.2011 an application for grant of bail u/s 167(2) of the Code was filed on behalf of the appellant on which learned Principal Magistrate, J. J. Board First Called for a report from the G.R. Office of CJM, Patna and then from the Office Clerk of Juvenile Justice Board, Gaighat, Patna. It would appear that the G.R. Office of the Court of C.J.M., Patna submitted its report that no charge-sheet has been submitted and at about 3.30 P.M. of 30.7.2011, the office clerk of the Juvenile Justice Board, Gaighat, Patna submitted report that charge-sheet has been submitted. It is strange to see that original charge-sheet has been directly received from the police station concerned to Juvenile Justice Board, Gaighat, Patna. Learned Principal Magistrate, J.J. Board considering the fact that charge-sheet has already been received held that the petition u/s 167(2) of the Code is not maintainable and as such it was rejected. It is strange to see that original charge-sheet has been directly received from the police station concerned to Juvenile Justice Board, Gaighat, Patna. Learned Principal Magistrate, J.J. Board considering the fact that charge-sheet has already been received held that the petition u/s 167(2) of the Code is not maintainable and as such it was rejected. From the record it is also clear that the period of ninety days expired on 28.7.2011 and charge-sheet was submitted in the court below on 30.7.2011 but before passing the ORDER :on the petition filed for bail u/s 167(2) of the Code." 5. There is specific provision under Section 167(2) Cr.P.C. that no Magistrate shall authorize the detention of accused present in custody under this paragraph of a total period exceeding 90 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years. Admittedly, the charge-sheet has not been submitted within 90 days from the date of the custody of the petitioner who is facing trial under Section 302/34 I.P.C. and therefore the petitioner is entitled to default bail. The request was rejected by the learned Juvenile Justice Board as well as the Appellate Court, as such the ORDER :passed by the learned Juvenile Justice Board as well as the learned Additional Sessions Judge cannot be sustained being erroneous and not supportable in view of the following facts:-- (i) There is no dispute about the fact that the petitioner-accused surrendered to custody on 29.4.2011 in which the allegation of murder is made. (ii) Obviously, therefore, it is rightly submitted that the period of 90 days expired on 28.7.2011. (iii) The charge-sheet came to be filed on 30.7.2011. 6. In view of the facts and circumstances and the indisputable aspects highlighted above, the ratio propounded by a Division Bench of this Court in the case of Karu Manjhi vs. State of Bihar, reported in 2005(4) BBCJ 121 [:2005(3) PLJR 757] is squarely attracted where in a similar situation it has been expounded and clearly held that the accused has indefeasible right to bail in terms of subsection (2) of Section 167 Cr.P.C. cannot be defeated. 7. It appears that the learned Appellate Court has referred to Rule 11(11) of the Juvenile Justice (Care and Protection of Children) Rules 2007. It is better to quote Rule 11(11):-- 11. 7. It appears that the learned Appellate Court has referred to Rule 11(11) of the Juvenile Justice (Care and Protection of Children) Rules 2007. It is better to quote Rule 11(11):-- 11. Pre and Post-production action of Police and other agencies.--(11) In dealing with cases of juveniles in conflict with law the Police or the Juvenile or the Child Welfare Officer from the nearest Police Station, shall not be required to register an FIR or file a charge-sheet, except where the offence alleged to have been committed by the juvenile is of a serious nature such as rape, murder or when such offence is alleged to have been committed jointly with adults; instead, in matters involving simple offences, the Police or the Juvenile or the Child Welfare Officer from the nearest Police Station shall record information regarding the offence alleged to have been committed by the juvenile in the general daily diary followed by a report containing social background of the juvenile and circumstances of apprehension and the alleged offence and forward it to the Board before the first hearing. 8. Rule 11 deals with pre and post-production action of police and other agencies. There is exception under Rule 11(11) where the offence alleged to have been committed by a juvenile is of serious nature such as rape, murder or when such offence is alleged to have been committed jointly, with adults. Certainly the case of the petitioner comes within the purview of exception as mentioned in Rule 11(11) of Rules 2007. 9. Considering the facts and circumstances, the ORDER :passed by the learned Juvenile Justice Board as well as the learned appellate court is set aside. The petitioner is directed to be released on bail on his furnishing bail bond of Rs. 10,000/- (ten thousand only) with two sureties of the like amount each to the satisfaction of learned Principal Magistrate, Juvenile Justice Board, Gaighat Patna City, Patna in connection with JJB Case No. 168 of 2011, arising out of Gopalpur P.S. Case No. 47 of 2011 with the following conditions:-- (i) One of the bailors must be the father of the petitioner. (ii) The father of the petitioner will take care of the petitioner and he will produce the petitioner in the Court if and when required. In case of absence on two consecutive dates, his bail bonds would be liable to be cancelled. (ii) The father of the petitioner will take care of the petitioner and he will produce the petitioner in the Court if and when required. In case of absence on two consecutive dates, his bail bonds would be liable to be cancelled. (iii) The petitioner will not indulge himself in similar or in any other offence. (iv) In case of violation of the terms and conditions of bail, the bail bond of the petitioner will be liable to be cancelled by the learned Juvenile Justice Board and he will be liable to be taken into custody. 10. In the result, this application is allowed. Application allowed