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2013 DIGILAW 593 (PNJ)

Amit Kumar v. State of Haryana

2013-05-07

M.M.S.Bedi

body2013
JUDGMENT Mr. M.M.S. Bedi, J.:- The petitioner seeks the concession of pre-arrest bail in a case registered at the instance of Balinder alleging that the complainant had been doing the job with the firm under the name and style of Prince Cable, Safidon. On 8.11.2012 the complainant received a telephone call from another mobile number complaining that the cable was out of order. The complainant had promised to send a boy to deal with the complaint but after some time again a telephone call was received by the complainant from the same mobile number and the boy calling on the phone threatened and abused the complainant, asking him to stay where ever he was and that the complainant will be taught a lesson. After 4/5 minutes, three boys came on a Splendor motor cycle, without number. Two of them were armed with pistols. One of them told that the complainant be taught a lesson for giving abuses and one boy, whose name was not known to the complainant, fired at him from the pistol. The said bullet passed from near left arm and the pellets of the bullet hit him on his left arm, as a result of which he fell down and raised an alarm. 2. Counsel for the petitioner submits that the names of the three boys, who had allegedly attacked the complainant Balinder, are not mentioned in the FIR and that the petitioner has been falsely implicated in the case. So far as the allegations against petitioner Amit Kumar are concerned, he had fired at the complainant, causing an injury on the left arm. Counsel has vehemently contended that the petitioner being a juvenile, can be granted the concession of pre-arrest bail as his arrest is contrary to the provisions of law. 3. After hearing counsel for the parties and without expression of any opinion on merits of the case, it is sufficient to observe here that a juvenile accused has been given a special status as per Juvenile Justice ( Care and Protection of Children) Act, 2000. He is entitled to the benefit under the said Act and the rules framed thereunder. As per Rule 10 of the Haryana Juvenile Justice ( Care and Protection of Children) Rules, 2009, a procedure is prescribed for dealing with the juveniles in conflict with law. He is entitled to the benefit under the said Act and the rules framed thereunder. As per Rule 10 of the Haryana Juvenile Justice ( Care and Protection of Children) Rules, 2009, a procedure is prescribed for dealing with the juveniles in conflict with law. Under Chapter III of 2009 Rules, detailed procedure has been prescribed regarding Pre and Post- Production action of Police and other agencies. The relevant rule 10 of the Rules, 2009 in this behalf is reproduced hereunder:- “Pre and Post- Production action of Police and other agencies. 10(1) As soon as a juvenile alleged to be in conflict with law is apprehended by the police, the concerned police officer shall inform:- (a) the designated Juvenile of the Child Welfare Officer in the nearest police station to take charge of the matter; (b) the parents or guardian of the juvenile alleged to be in conflict with law about the apprehension of the juvenile, about the address of the Board where the juvenile shall be produced and the date and time when the parents of guardian need to be present before the Board; (c) the concerned probation officer, of such apprehension enable him to obtain information regarding social background of the juvenile and other material circumstances likely to be of assistance to the Board for conducting the inquiry (2) Soon after apprehension, the juvenile shall be placed under the charge of the Juvenile or Child Welfare Officer from the nearest police station, who shall produce the juvenile before the Board within twenty four hours as per sub-section (1) of Section 10 of the Act and where such Juvenile or the Child Welfare Officer has not been designated as per provisions laid down under sub-section (2) of Section 63 of the Act or is not available for some official reasons, the police officer who had apprehended the juvenile shall produce him before the Board. (3) The Police apprehending a juvenile in conflict with law shall, in no case send the juvenile in lock-up or delay his charge being transferred to the Juvenile or the Child Welfare Officer from the nearest police station, if such an officer has been designated. (4) A list of all the designated Juvenile or the Child Welfare Officers in a district and members of Special Juvenile Police Unit with contact details shall be prominently displayed in every police station. (4) A list of all the designated Juvenile or the Child Welfare Officers in a district and members of Special Juvenile Police Unit with contact details shall be prominently displayed in every police station. (5) For gathering the best available information, it shall be incumbent upon the police or the Juvenile or the Child Welfare Officer from the nearest police station, to contact the parents or guardians of the juvenile and also apprise them of the juvenile’s law breaking behaviour. (6) The police or the Juvenile or the Child Welfare Officer from the nearest police station, shall also record the social background of the juvenile and circumstances of apprehension and offence alleged to have been committed in the case diary of each juvenile, which shall be forwarded to the Board forthwith. (7) The police or the Juvenile or the Child Welfare Officer from the nearest police station, shall exercise the power of apprehending the juvenile only in cases of his alleged involvement in serious offences (entailing a punishment of more than 7 years imprisonment for adults) (8) In such cases where apprehension apparently seems to be in the interest of the juvenile, the police or the Juvenile of the Child Welfare Officer from the nearest police station, shall rather treat the juvenile as a child in need of care and protection and produce him before the the Board, clearly explaining the juvenile’s need for care and protection in its report and seek appropriate orders from the Board under rule 12(I) (B) of these rules. (9) For all other cases involving offences of non- serious nature ( entailing a punishment of less than 7 years imprisonment for adults) and cases where apprehension is not necessary in the interest of the juvenile, the police or the Juvenile or the Child Welfare Officer from the nearest police station, shall intimate the parents or guardian of the juvenile about forwarding the information regarding nature of offence alleged to be committed by their child or ward along with his socio-economic background to the Board, which shall have the power to call the juvenile for subsequent hearings. (10) In case the Board is not sitting, the juvenile in conflict with law shall be produced before the single member of the Board as per the provisions laid down under sub-section (2) of Section 5 of the Act. (10) In case the Board is not sitting, the juvenile in conflict with law shall be produced before the single member of the Board as per the provisions laid down under sub-section (2) of Section 5 of the Act. (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. (12) The State Government may recognize on such voluntary organizations that are in a position to provide the services of probation, counselling, case work, a safe place and also associate with the Police or the Juvenile or the Child Welfare Officer from the special juvenile police unit, and have the capacity, facilities and expertise to do so as protection agencies that may assist the police of the juvenile or the Child Welfare Officer from the police at the time of apprehension, in preparation of the report containing social background of the juvenile and circumstances of apprehension and the alleged offence, in taking charge of the juvenile until production before the Board, and in actual production of the juvenile before the Board within 24 hours. (13) The police or the Juvenile or the Child Welfare Officer from the Special Juvenile Police Unit, or the recognized voluntary organization shall be responsible for the safety and provision of food and basic amenities to the juveniles apprehended or kept under their charge during the period such juveniles are with them. (14) When a juvenile is produced before an individual member of the Board, and an order obtained, such order shall need ratification by the board in its next meeting.” 4. (14) When a juvenile is produced before an individual member of the Board, and an order obtained, such order shall need ratification by the board in its next meeting.” 4. I have gone through the above said provisions and I am of the opinion that the petitioner, in case of his arrest, has got a right to be dealt with as per the provisions of Rule 10 of 2009 Rules, mentioned herein above. 5. The petition for pre-arrest bail has been opposed inter alia on the ground that the petitioner has got notorious antecedents. He is already involved in three other criminal cases. Copies of the FIRs have been placed on record. 6. Taking into consideration the totality of the circumstances, this court is of the opinion that in view of statutory relief already available to the petitioner on account of his status as a juvenile, no more concession can be granted to him by exercise of powers u/s 438 Cr.P.C., especially when the petitioner is accused of three other criminal cases. It is not a case where extra-ordinary exceptional circumstances can be said to be existing for granting the relief. Another reason for passing the above order is that the petitioner had been directed to join the investigation on 4.5.2013. Police record indicates that there is a specific entry made in the DDR regarding non compliance of the order. 7. Dismissed. However, it is observed that in case the petitioner joins the investigation, he will be entitled to avail the benefit by moving an appropriate application and he will be dealt with as per Rule 10 of the 2009 Rules. ---------0.B.S.0------------