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2018 DIGILAW 571 (ORI)

Chemutu @ Sachidananda Patra v. State of Odisha

2018-05-17

D.P.CHOUDHURY

body2018
ORDER 17.5.2018 Heard learned counsel for the petitioner and learned Addl. Standing Counsel. Mr. Amit Kumar Bhuyan, the I.O. of this case is present in Court along with the case diary. 2. Challenge has been made to the order dated 18.10.2017 passed by the learned Addl. Sessions Judge-cum-Special Judge, Children’s Court, Keonjhar in J.J.C. Case No. 6 of 2017, wherein the learned Special Judge rejected the prayer for bail of the petitioner. 3. Learned counsel for the petitioner submits that the learned Special Judge is not correct as it has not appreciated the proper perspective in view of the clear provision of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter called “the Act”) that bail should be the rule and rejection is the exception. He further submits that the petitioner is a juvenile having no knowledge of any consequence of the act alleged. Again he submits that there was love affair between the petitioner and the victim girl and no external injury was found on her person. So, he submits to quash the order of the learned Special Judge and allow this Revision by granting bail to the petitioner. 4. Learned Addl. Standing Counsel vehemently opposes the prayer for bail stating that although the petitioner is a juvenile, but as per the observation of the J.J.B., he has got maturity to understand what he has done. She relied on the statement of the victim and her friend and the medical report. According to her, t he petitioner is not entitled to bail because of the restriction under Section 12 of the Act. Ultimately, she supported the impugned order passed by the learned Special Judge. 5. Considered the submissions of respective counsel. On perusal of the record and case diary it appears that the victim and her friend while were waiting to go, the petitioner came in a bike and asked them to come with him because it was about to rain. Finding no other way, the victim and her friend went with the petitioner, but the petitioner instead of leaving them in their houses, took them to his friend’s house. As per the statement of the victim, girl during night the petitioner committed rape upon the victim girl. Said statement is supported by the friend of the victim. Finding no other way, the victim and her friend went with the petitioner, but the petitioner instead of leaving them in their houses, took them to his friend’s house. As per the statement of the victim, girl during night the petitioner committed rape upon the victim girl. Said statement is supported by the friend of the victim. No doubt prima facie case is made out against the petitioner and the learned Special Judge has passed the order. The relevant portion of the impugned order is quoted below:- “xx xx xx xx Heard both parties. Perused the documents including 161 Cr.P.C. statement of the victim and others. Previously the bail petition filed by the CICL before the Court of PMJJB has been rejected on the ground that if he would be released on bail there is every possibility that he would repeat such act in future. That apart Sec.4 of POCSO Act which carries a minimum punishment of seven years of imprisonment is “heinous” within the meaning of Sec. 2(33) of J.J. Act. No doubt the case has been received by this Children’s Court after deciding the PMJJB that the CICL has developed maturity and he has committed the crime after knowing the consequence of the offence. The CICL is aged about 17 years old. The victim is also aged about 13 years and it appears that there is prima facie evidence against the CICL that he had committed the offence with the victim and if he would be released on bail there is every possibility of danger to the victim ad it would defeat the ends of justice. So, considering the nature of offence, manner of the offence committed by the CICL, I found that the bail petition on behalf of CICL has no merit and it stands rejected.” 6. From the aforesaid order it appears that the learned Special Judge found that in the event of release of the petitioner on bail, there is every possibility of danger to the victim and it would defeat the ends of justice. Section 12 of the Act states as follows:- “12. From the aforesaid order it appears that the learned Special Judge found that in the event of release of the petitioner on bail, there is every possibility of danger to the victim and it would defeat the ends of justice. Section 12 of the Act states as follows:- “12. Bail to a person who is apparently a child alleged to be in conflict with law.-(1) When any person, who is apparently a child and is alleged to have committed a bailable or non-bailable offence, is apprehended or detained by the police or appears or brought before a Board, such person shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 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 person: Provided that such person shall not be so released if there appears reasonable grounds for believing that the release is likely to bring that person into association with any known criminal or expose the said person to moral, physical or psychological danger or the person’s release would defeat the ends of justice, and the Board shall record the reasons for denying the bail and circumstances that led to such a decision. (2) When such person having been apprehended is not released on bail under subsection (1) by the officer-incharge of the police station, such officer shall cause the person to be kept only in an observation home in such manner as may be prescribed until the person can be brought before a Board. (3) When such person is not released on bail under sub-section (1) by the Board, it shall make an order sending him to an observation home or a place of safety, as the case may be, for such period during the pendency of the inquiry regarding the person, as may be specified in the order. (4) When a child in conflict with law is unable to fulfill the conditions of bail order within seven days of the bail order, such child shall be produced before the Board for modification of the conditions of bail.” 7. (4) When a child in conflict with law is unable to fulfill the conditions of bail order within seven days of the bail order, such child shall be produced before the Board for modification of the conditions of bail.” 7. The aforesaid provision is very clear to show that if the CICL already committed offence, shall be released on bail but he would not be released on bail if on his release there is danger to his life physically and psychologically or exposed to criminal or his release is not required, for ends of justice. Now what is “ends of justice” to be decided according to the facts and circumstances of the case. 8. In the present case the rigor of the offence has role of play to some extent, but the major portion of consideration is to find out whether the act committed by the juvenile is within his knowledge and with his understanding and at the same time it has to be seen who is the victim of the case. 9. While striking balance between age, character, knowledge, intelligence quotient of offender vis-à-vis victim and the attending circumstances, the ends of justice is quietly can be measured. Therefore, on the fact of the present case rightly the learned Special Judge has observed that in the event of release of the petitioner on bail, it would defeat the ends of justice. Moreover, the age of the CICL is 17 years and he has got appropriate level of understanding of the act complained of. At the same time the victim girl is minor and she has got injury on private part. Thus, the conclusion arrived at by the learned Addl. Sessions Judge-cum-Special Judge, Keonjhar needs no interference. Accordingly the CRLREV being devoid of merit stands dismissed. The personal appearance of the I.O. is dispensed with. The case diary be returned back. CRLREV dismissed.