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2011 DIGILAW 55 (RAJ)

Kanhaiyalal v. State of Rajasthan

2011-01-07

KAILASH CHANDRA JOSHI

body2011
JUDGMENT 1. - By this revision petition, challenge has been made to the order dated 30.11.2010 passed by the learned Sessions Judge, Chittorgarh, dismissing the appeal filed by the petitioner against the order dated 24.11.2010 passed by the learned Principal Magistrate, Juvenile Justice Board, Chittorgarh in FIR No. 200/2010 under Section 363, 366, 376, 120-B IPC registered at Police Station Gangrar. 2. The brief facts of the case are that a complaint was filed before the Judicial Magistrate, Gangrar, which was sent to the Police for investigation under Section 156(3) CrPC. The police registered the case as FIR No. 200/2010 under Section 363, 366, 376 and 120-B IPC at Police Station Gangrar and commenced investigation. During the course of investigation, present petitioner Kanhaiyalal 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, Chittorgarh. The application was rejected after hearing both the sides by the learned Principal Magistrate, Juvenile Justice Board, Chittorgarh vide order dated 24.11.2010 on the ground that present case is of heinous nature pending against the petitioner. Petitioner then preferred appeal under Section 52 of the Act before the District and Sessions Judge, Chittorgarh, who by order dated 30.11.2010 dismissed the appeal and maintained the order of rejection of bail for Kanhaiyalal. 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 and they are based on surmises and 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 District and Sessions Judge. 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. 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 District and Sessions Judge. 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 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. 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. 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 as well as the order passed by the learned appellate court, i.e. Sessions Judge, Chittorgarh declining bail to the accused-petitioner are hereby set aside. It is directed that the accused-petitioner Kanhaiyalal S/o Daalchand 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 Board, Chittorgarh 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. *******