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2015 DIGILAW 22 (CHH)

Fuluram v. State Of Chhattisgarh

2015-01-20

MANINDRA MOHAN SHRIVASTAVA

body2015
ORDER : Manindra Mohan Shrivastava, J. 1. This revision arises out of order dated 13.10.2014 passed in appeal by Additional Sessions Judge (FTC), Kawardha whereby the applicant's appeal against rejection of his application for grant of bail under Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2000, (for short 'the Act of 2000') has been rejected. Offence under Section 376, 450, 341 IPC and Section 8 of Protection of Children from Sexual Offences Act, 2012 (for short 'PASCO Act') has been registered against the applicant. 2. The applicant is stated to be a 16 years old tribal boy. The allegation against the applicant is that the applicant had taken the prosecutrix, a minor girl aged 13 years old, to a nearby situated pump-house where, it is alleged, the applicant raped the minor girl. 3. As the applicant is a juvenile, he has been kept in the rehabilitation home (Baal Sampreshan Grah). An application under Section 12 of the Act of 2000 was moved by the applicant seeking bail which was rejected by the Board taking into consideration the nature of offence alleged to have been committed by the applicant and also taking into consideration the social enquiry report. Aggrieved by the order, an appeal was preferred which was also dismissed which gave rise to this revision petition. 4. Learned counsel for the applicant argued that once the juvenility of the applicant is not in dispute, while deciding the application for release on bail, the considerations relevant are those which have been specifically enumerated in Section 12 of the Act of 2000. Learned counsel for the applicant argued that the applicant is a tribal boy, aged 16 years only. He is studying in school and the social enquiry report submitted before the Juvenile Justice Board does not indicate anywhere that upon such release, the applicant will come into association of any known criminal or will be exposed to moral, physical or psychological danger. He submits that there is no other material on record to form even a prima facie opinion that the circumstances in which the offence was committed indicates moral depravity on the part of the accused to justify any such ground for rejecting the application. He submits that there is no other material on record to form even a prima facie opinion that the circumstances in which the offence was committed indicates moral depravity on the part of the accused to justify any such ground for rejecting the application. Learned counsel for the applicant also submits that the medical report and even the statement under Section 164 CrPC of the prosecutrix does not prima facie show that any rape was committed nor can be said to be a prima facie case of penetrative sexual assault defined under Section 3 of the PASCO Act. In these circumstances, the legislative mandate under Section 12 of the Act requires release of the applicant. 5. On the other hand, learned State counsel opposes prayer for grant of bail and submits that the nature of offence alleged to have been committed by the applicant itself is indicative of the depravity from which the child is suffering. This, by itself, constitutes reasonable ground that in the event of release, the juvenile may be exposed to moral, physical or psychological danger. He submits that the manner in which the applicant committed offence against the minor girl of 13 years of age, is by itself a relevant consideration that grant of bail will defeat the ends of justice. 6. A juvenile in conflict with law is to be dealt with in accordance with the provisions of the Act of 2000 which comes at providing a greater attention to be given to a child who is in conflict with law and needs care and protection. Justice system as available for adults is not considered suitable to be applied to a juvenile or a child or anyone in their behalf including the police, voluntary organization, social workers or parents and guardians. In order to achieve aforestated legislative object, the provisions of the Act of 2000 particularly Section 12 incorporates a scheme specially designed for juveniles. Section 12of the Act of 2000 makes provision with regard to grant of bail to juvenile. The provision being relevant is extracted herein below - "12. In order to achieve aforestated legislative object, the provisions of the Act of 2000 particularly Section 12 incorporates a scheme specially designed for juveniles. Section 12of the Act of 2000 makes provision with regard to grant of bail to juvenile. The provision being relevant is extracted herein below - "12. Bail of juvenile-(1) When any accused of a bailable or non-bailable 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 [or placed under the supervision of a Probation Officer or under the care of any fit institution or fit person] 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. (2) When such person having been arrested is not released on bail under sub-section (1) by the officer-in-charge of the police station, such officer shall cause him to be kept only in an observation home in the prescribed manner until he can be brought before of Board. (3) When such person is not released on bail under sub-section (1) by the Board it shall, instead of committing him to prison, make an order sending him to an observation home or a place of safety for such period during the pendency of the inquiry regarding him as may be specified in the order." 7. A perusal of the aforesaid provision would at once reveal that in case of a juvenile, different considerations weigh than those which the Court normally applies while considering application for grant of bail in other cases. A juvenile, who is an accused of having committed an offence, as a matter of course is entitled to be released on bail with or without surety or placed under the supervision of the Probation Officer or under the care of a fit institution or fit person. A juvenile, who is an accused of having committed an offence, as a matter of course is entitled to be released on bail with or without surety or placed under the supervision of the Probation Officer or under the care of a fit institution or fit person. Bail can be refused only when there appears to be reasonable ground for belief that such release is likely to bring him in association with any known criminal or expose to moral, physical or psychological danger or otherwise his release would defeat the ends of justice. Therefore, unless these extra ordinary grounds exist to operate against release, the juvenile is entitled to release on bail with or without surety or placed under supervision of a Probation Officer or under the fit institution or fit person. 8. Present is a case where the applicant is a juvenile aged 16 years. He is a tribal boy. The prosecutrix is also a 13 years old minor child. In her statement under Section 164 CrPC before the Magistrate, she has not alleged any violence used by the applicant. It has also come in her statement that when she jumped into the pond, the applicant saved her. The medical report of examination of the prosecutrix does not show any injury either on the private parts or any part of the body. 9. The social enquiry report submitted before the Board nowhere indicates that the juvenile, in the event of release, is likely to be exposed to moral, physical or psychological danger. The atmosphere of his family and surroundings, where he is living, also does not indicate that the juvenile is likely to be exposed to any such danger. The report of probation officer recommended that the child requires proper protection. In the absence of there being any material to show that in the event of release on bail, the child is not likely to continue in proper protection either of parents, family members, teachers of the school or in the society in which he is living, only on such recommendation rejecting application, with a direction to keep the juvenile in the observation home does not appear to be just and proper in the circumstances of the case. Therefore, the legislative mandate of Section 12 of the Act of 2000 is required to be given full effect in the facts and circumstances of the present case and the applicant is, therefore, entitled to be released. 10. Accordingly, this revision is allowed. The juvenile/applicant shall be released on a security to be furnished by the father of the applicant on such terms and conditions as may be directed by the Juvenile Justice Board and the juvenile shall be produced by the father/guardian before the Juvenile Justice Board at least once in three months till the case is finally decided by the Board.