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2011 DIGILAW 585 (RAJ)

Chunna Ram @ Chunnilal v. State of Rajasthan

2011-03-17

VINEET KOTHARI

body2011
JUDGMENT : 1. This revision petition is directed against the order dated 2.2.2011 passed by learned Sessions Judge, Bikaner rejecting the appeal of the accused Chunna Ram @ Chunnilal aged about 16 years 2 months, a juvenile, against the order of juvenile justice Board, Bikaner dated 1.2.2011 refusing bail under Section 12 of the juvenile Justice (Care and Protection of Children) Act, 2000. The reasons assigned by the Board is that the release of the accused Chunna Ram, who was an accused of the offence under Section 376 I.P.C., would bring him in contact with known criminals and he would be in moral, physical and psychological danger and, therefore, he may he kept in reform home. While rejecting the appeal, the learned Sessions Judge, Bikaner has held that since the offence is of heinous nature and the accused repeatedly committed rape on the prosecutrix aged 11th years only, therefore, ends of justice would be defeated if he is enlarged on bail. 2. Being aggrieved by these two orders, the accused Chunna Ram @ Chunnilal though this father Heera Lal Prajapat is before this Court in the present revision petition. 3. Learned counsel for the petitioner Mr. Sheetal Khumbht submitted that the grant of bail to a juvenile is a rule as per Section 12 of the Act and unless the case falls within three exceptions enumerated under Section 12 of the Act, the bail cannot he normally refused to a juvenile irrespective of the nature of the crime. He submitted that the three exceptions are (i) If there appears reasonable grounds for believing that the release is likely to bring him into association with any known criminal, (ii) that the release is likely to expose him to moral, physical or psychological danger; and (iii) that the release would defeat the ends of justice. He urged that merely repetition of these words in the impugned orders passed by the Courts below is not sufficient, as no facts or circumstances have been narrated, which satisfy these grounds for applying the exception in Section 12(1) of the Act while refusing bail to a juvenile. He urged that merely repetition of these words in the impugned orders passed by the Courts below is not sufficient, as no facts or circumstances have been narrated, which satisfy these grounds for applying the exception in Section 12(1) of the Act while refusing bail to a juvenile. He submitted that there is no criminal background of parents of the accused juvenile and also the accused has been falsely implicated in the said case of rape, which was in fact committed by another person Chatar Nath, who was serving in a mobile tower, in the room of which the said act is purported to be committed and when the petitioner reached that place and saw them in compromising position, he was also implicated in the said case. 4. Be that as it may, he further submitted that in view of the admitted fact that accused was a juvenile of 16th years of age only and a student of 10th standard, he deserves to be enlarged on bail: 5. He relied upon various judgments at the bar, two of which are noticed below. 6. In Vikas Yadav v. State of Haryana, 2010 (1) AICLR 374 , learned Single Judge of Punjab and Haryana High Court relying upon the decision of Supreme Court in the case of Gopinath Ghosh v. State of West Bengal, where the accused is under trial for the offence under Section 302 I.P.C. for allegedly committing murder of his classmate and he was a juvenile, rejection of his bail application by the Principal Magistrate, Juvenile Justice Board merely on the ground that ends of justice would be met if juvenile is kept in reform home, the Court held that there was nothing on record to suggest that the parents of the petitioner have any criminal background and further there was no material on record on the basis of which Courts below opined that there is likelihood of petitioner's coming in contact with known criminals. 'Though the incident in which the petitioner along with Akash killed their another classmate is unfortunate, but still the case of tile petitioner does not fall within the exceptions as carved out under Section 12(1) of the Act for rejection of the bail application. 'Though the incident in which the petitioner along with Akash killed their another classmate is unfortunate, but still the case of tile petitioner does not fall within the exceptions as carved out under Section 12(1) of the Act for rejection of the bail application. The relevant paras 4 and 5 extracting the decision of Supreme Court in Gopinath Ghosh's case and another decision of Punjab and Haryana High Court in the case of Ramesh alias Meshu v. State of Haryana, a case under Section 376 I.P.C., are quoted below for ready reference: "4. Hon'ble the Supreme Court in Gopinath Ghosh's case (supra), considering the prayer for bail by a juvenile, who was an accused for offence committed under Section 302 I.P.C. opined us Linder : "It clearly transpires from a combined reading of the sections hereinbefore extracted that where a Juvenile delinquent is. arrested, he/she has to be produced before a Juvenile Court and if no juvenile Court is established for the area, amongst others, the Court of Sessions will have powers of a Juvenile Court. Such a juvenile delinquent ordinarily has to be released on bail irrespective of the nature of the offence alleged to have been committed unless it is shown that there appears reasonable grounds for believing that the released is likely to bring him under the influence of any criminal or expose him to moral danger or defeat the ends of justice." 5. This Court in Ramesh alias Meshu's case (supra) while considering the prayer for bail by a juvenile accused for offence under Sections 376, 452 and 325 I.P.C. opined as under : "I have heard the argument of the counsel for the parties and gone through the impugned orders passed by the juvenile Justice Board as well as Additional Sessions Judge, Sonepat. In my opinion, rejection of bail application of the petitioner by the Courts below only on the ground that it will defeat the ends of justice, is wholly erroneous. The prosecution has not produced any material or evidence that release of the petitioner will defeat the ends of justice. The granting of bail to a juvenile is must notwithstanding anything contained in the Code of Criminal Procedure or in any other law for the time being in force. The prosecution has not produced any material or evidence that release of the petitioner will defeat the ends of justice. The granting of bail to a juvenile is must notwithstanding anything contained in the Code of Criminal Procedure or in any other law for the time being in force. However, bail can only be declined in exceptional circumstances where it appears to the Court that the release of the petitioner 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. In the instant case, there is no reasonable apprehension that the release of the petitioner will being him into association with any known criminal or expose him to moral, physical or psychological danger. The only exceptional reason given both the Courts below is that release of the petitioner will defeat the ends of justice. This conclusion also, in my opinion, is not based upon material or any reasonable grounds." 7. In a recent decision, the Division Bench of Gauhati High Court in Naisul Khatun v. State of Assam & Ors., 2011 Cri.L.J. 326 , Chief Justice Madan B. Lokur speaking for the bench held that it is not for a juvenile to make out a case why he should be granted bail but it is for the arresting authority to satisfy the Juvenile Justice Board that tile juvenile should not be released on bail because of the existence of any one of the three circumstances mentioned in Section 12(1) of the Act and refusal of bail to a juvenile is more in the nature of protective custody rather than penal custody. Quoting from United Nations Standard Minimum Rules for Administration of Juvenile justice, 1985 (the Beijing Rules), the Division Bench of Gauhati high Court held that deprivation of the liberty of a juvenile should be a disposition of last resort and for the minimum necessary period and should be limited to exceptional cases. The length of the sanction should be determined by the judicial authority, without precluding the possibility of his or her early release, It is worthwhile to quote paras 24 and 25 of the said judgment for ready reference. "24. The length of the sanction should be determined by the judicial authority, without precluding the possibility of his or her early release, It is worthwhile to quote paras 24 and 25 of the said judgment for ready reference. "24. A reading of Section 12(1) of the Act makes it clear that notwithstanding anything contained in the Code of Criminal Procedure or in any other law, a juvenile is entitled to he released on bail with or without a surety. However, the juvenile will not be released if there appear to be reasonable grounds for believing: (1) that the release is likely to bring him into association with any known criminal; (ii) that the release is likely to expose him to moral, physical or psychological danger; (iii) that the release would defeat the ends of justice. 25. Unlike the usual cases where bail is applied for by an accused and he has to make out a case for grant of bail, the position is the reverse in the case of a bail for a juvenile in conflict with law. Here, it is not for the juvenile to make out a case why he should he granted bail but it is for the arresting authority to satisfy the juvenile justice Board that the juvenile should not be. released on bail because of the existence of any one of the three circumstances mentioned above. The first and second circumstances are clearly intended to ensure the safety of the juvenile while the third circumstance is to prevent a defeat of the ends of justice. The onus therefore is a reverse onus and is more akin to the prosecution asking for a remand of an accused into custody rather than a prayer by the accused for being released from custody. The language used in Section 12(1) of the Act is rather interesting in this context, and shorn of unnecessary verbiage, tile Section would read: "such (a juvenile) shall be released on bail, but he shall not be so released if there appear reasonable grounds for believing that the release is likely to...." Refusal to bail out a juvenile is, therefore, more in the nature of protective custody rather than penal custody." 8. In the present case, the Courts below have not narrated any specific fact which would bring the case of present petitioner within he three exceptions of Section 12 (1) of the Act for refusal of bail to a juvenile, as noted above. Merely the moral turpitude behind the crime in question or its heinous nature by itself is not sufficient to reject the bail unless post facto circumstances exist which bring the case of juvenile within three exceptions of Section 12(1) of the Act. The observation of learned Sessions Judge; Bikaner in the impugned order dated 2.2.2011 that repeated rape was committed on the prosecutrix aged 11th years and, therefore, ends of justice would be defeated if the petitioner is enlarged on bail, so also the reason assigned by the juvenile justice Board in the order dated 1.2.2011 appears to be mere repetition of language of these exceptions rather than applying the same to the relevant facts of the case. No such exceptional facts and circumstances have been narrated in the impugned order, which would justify the rejection of bail to the petitioner juvenile in the present case. 9. This Court is further of the opinion that in view of the objectives of the Juvenile Justice (Care and Protection of Children) Act, 2000, which was enacted for emphasising the need-of care and protection of children, by providing for proper care, protection and treatment by catering to their development needs and by adopting a child-friendly approach in the adjudication and disposition of matters in the best interest of children and for their ultimate rehabilitation through various institutions established under the said Act, the accused-petitioner is entitled to grant of bail in the facts and circumstances of the case. 10. Consequently, the present revision petition is allowed. The impugned order dated 1.2.2011 passed by juvenile Justice Board, Bikaner and order dated 2.2.2011 passed by learned Sessions Judge, Bikaner dismissing the appeal of the accused-petitioner Chunnaram Oa, Chunnilal are hereby set aside. The accused Chunnaram @ Chunnilal S/o Hiraram @ Heeralal is directed to be enlarged on bail subject to furnishing of bail bonds by his father Hiraram @ Heeralal in the sum of Rs. 20,000/- with one surety by his mother in the sum of Rs. 10,000/- to the satisfaction of Principal Magistrate, Juvenile Justice Board, Bikaner.Revision allowed.