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Madhya Pradesh High Court · body

2011 DIGILAW 743 (MP)

Hakam v. State of M. P.

2011-07-08

VIMLA JAIN

body2011
ORDER Vimla Jain, J. 1. This is a criminal revision under Section 397/401 of the Code of Criminal Procedure, 1973, for setting aside the judgment dated 18/04/ 2011 passed by the Special Judge, Sagar and for granting bail to the applicant. 2. Brief facts of the case are that on 08/03/2011 at about 5.00 p.m., the prosecutrix, daughter of Jagat Singh Ahirwar, was playing in front of her house. The appellant allured her to play with him, took her in cattle house (sar) of Baliram and committed rape with her. 3. The learned counsel for the applicant submitted that the applicant is young boy of 16 years. He is a juvenile. He is an student of 8th class. He is entitled for bail. 4. Learned counsel for the State supported the impugned order. However, he could not point out as to how the present case would fall under any of the three exceptions mentioned in Section 12 of the Juvenile Justice (Care & Protection of Children) Act, 2000 (hereinafter referred to as the "Act"). 5. Heard learned counsel for the parties and perused the record. 6. The learned Special Judge dismissed the bail on the ground that he nature of offence is quite heinous. Keeping in view the tender age of 7 years of victim, it shall not be justified to release him on bail from moral, psychological and social angles. 7. It is well settled legal position that once a person is held to be a juvenile delinquent, then Section 12 of the Act, 2000 would govern the question of grant of bail and custody of juvenile and it will not be governed by the provisions of the Code of Criminal Procedure, 1973. 8. Section 12 of the Juvenile Justice (Care & Protection of Children) Act, 2000, reads as under:- 12. 8. Section 12 of the Juvenile Justice (Care & Protection of Children) Act, 2000, reads as under:- 12. Bail of Juvenile:-(1) When any person accused of a bail able or non-bail able 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 of 1974) 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. 9. The position of law with regard to grant of bail to a juvenile under Section 12 of the Act, is clear that a juvenile has to be released on bail mandatorily unless and until the exceptions carved out in the section itself are made out. The first exception is a reasonable ground for believing that the release is likely to bring the juvenile into association with any known criminal. The second exception is that the release of the juvenile is likely to expose him to any moral, physical or psychological danger. Both these exceptions are not made out because there is no material available in the record of the case to suggest any such association or exposure. The third exception is that the release of the juvenile would defeat the ends of the justice. 10. The impugned order is based on the serious nature of the offence as well as the release of the petitioner not being in the interest of justice. The nature of the offence is not one of the conditions on which bail can be granted or refused to the juvenile. Bail, in respect of a juvenile, has to be considered purely under the parameters of Section 12 of the Act which requires bail to be granted mandatorily unless the court feels that the release of the juvenile is likely to bring him in the association of any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice. 11. 11. The prosecution did not bring on record any material or report of the Probation Officer, to show mat the release of the delinquent juvenile on bail is likely to bring him into the association with any known criminal or expose him to moral, physical or psychological danger or his release would defeat the ends of justice. 12. It appears that there is no likelihood of the juvenile delinquent, to whom the bail is being granted, interfering with the course of justice. He is not likely to abscond from the jurisdiction of the Court. If the petitioner is released on bail, there does not appear a reasonable ground 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. The grant of bail itself is not likely to result in injustice. 13. Looking at the totality of circumstances, I feel that the present case is not covered in anyone of the three exceptions carved out under Section 12, of the Act, therefore, the juvenile is entitled for bail and the impugned order dated 18/04/2011 is liable to be set aside. 14. Consequently, keeping in view all the facts and circumstances of the case, I direct that the juvenile be released on bail upon his father furnishing a personal bond in the sum of Rs. 25,000/-(Rs. Twenty Five Thousand) with one surety of the similar amount to the satisfaction of the Juvenile Justice Board, Sagar, with the stipulation that on all the subsequent dates of hearing, he shall produce the delinquent juvenile before the said Board or any other Court during pendency of the inquiry, and shall take proper care of the juvenile delinquent and keep him away from the company of known criminals. This order shall come into effect upon the juvenile's father Nattu Singh Ahirwar giving an affidavit to the effect that he shall ensure that his son does not come into contact with any criminal or bad elements in society and that he shall take full care that his son is properly educated and is developed morally as well as psychologically. This application stands disposed of accordingly.