JUDGMENT : (In Re:- C.M. Application No.29653 of 2018) 1. Heard learned counsel for the appellant as well as learned A.G.A. appearing for the State and perused the record. 2. This criminal appeal has been preferred by the appellant/Suraj Yadav for setting aside the impugned order dated 03.02.2018 passed by Special Judge, Children Court/ Special Judge, POCSO Act/ Additional Sessions Judge, Court No.1, Lakhimpur Kheri passed in Bail Application No.13 of 2018, Crime No. 233/2017, under Section 302 I.P.C., P.S. Dhaurahara, District Lakhimpur Kheri. 3. Learned counsel for the appellant while referring to the order dated 03.02.2018 of the Special Judge, Children Court/ Special Judge, POCSO Act/ Additional Sessions Judge, Court No.1, Lakhimpur Kheri submits that the court below has materially erred in rejecting the bail application of the appellant as there was no material or evidence against the appellant, which may suggest that the appellant has done the offence and also there was no evidence, which may cast an apprehension that after releasing on bail, the appellant may come in contact with some criminals or may indulge in any illegal or unsocial activity or in any way release of the appellant on bail will result in the failure of justice or otherwise will expose the appellant to moral, physical or psychological danger. 4. It is further submitted that even if, the version of the prosecution is taken on its face value, the deceased Radheyshyam was the real uncle of the appellant and there was no occasion for the appellant or his father-Vishram Yadav to murder the deceased-Radheshyam. It is next submitted that the deceased at the fateful night was sleeping out of his house below a Neem tree and on the next morning at about 5.30 A.M. father of the appellant namely Vishram Yadav saw the deceased lying in a pool of blood at his cot. The motive suggested by the prosecution is very weak and there is no witness, who has seen the appellant or his father committing the crime. The only evidence which is available against the appellant is his own confessional statement and a recovery of a blood stained axe on the pointing out of the appellant. 5. The motive suggested by the prosecution is very weak and there is no witness, who has seen the appellant or his father committing the crime. The only evidence which is available against the appellant is his own confessional statement and a recovery of a blood stained axe on the pointing out of the appellant. 5. It is next submitted that the appellant has been declared juvenile vide order dated 22.09.2017 by Juvenile Justice Board, Lakhimpur Kheri and that order has not been challenged anywhere and has became final and the court below while rejecting the bail application of the appellant has guided by the heinousness of the offence and has not considered the facts and circumstances pertaining to the ground as to why the bail is being denied to the appellant, when there is nothing on record, which may suggest that the appellant may be subject to any physical or psychological danger. It is further submitted that the court below has also not taken into consideration the report of District Probation Officer in right perspective and the confession alleged to have been made by the appellant before the police, could not be proved against him. It is next submitted that the mother of the appellant namely Smt. Vidyawati undertakes that if the facility of the bail is granted to the appellant, she will keep the appellant in her safe custody and would not allow him to indulge in any illegal or immoral activity. The appellant is in jail in this matter since 02.07.2017 and there is no likelihood that after release on bail the appellant may flee from the course of law or will not appear before the court below or in any way may fall in any bad company or otherwise his release will result into failure of justice. 6. Learned A.G.A. however, opposes the prayer of the bail of the appellant on the ground that there is no illegality in the order passed by the court below and also that there is apprehension that after being released on bail, the appellant being juvenile may commit the same offence again or may fall in bad company and his release otherwise will put him in moral, physical and psychological danger. 7. I have considered the argument of learned counsel for rival parties and have considered the matter in depth. 7. I have considered the argument of learned counsel for rival parties and have considered the matter in depth. The law with regard to the bail of juvenile is well settled that the general rule for juvenile is bail and not Jail, unless the conditions mentioned in section 12(1) of the Act are attracted the bail to juvenile should ordinarily not be denied. There should be some reasonable ground or material available on record to believe that the release of the juvenile on bail, is likely to bring him/her in association with criminals or or his release will result in failure of justice or other exigencies mentioned in section 12(1) of the Act, pertaining to exposure of juvenile to moral, psychological danger may be attracted, but the gravity of the offence alone is not to be considered at the time of the consideration of bail of juvenile and the paramount consideration is the welfare of juvenile. 8. Before proceeding further it is fruitful to reproduce Section 12 (1) of The Juvenile Justice (Care and Protection of Children) Act, 2015, which speaks about the conditions pertaining to the release of juvenile on bail as under: Sec.12(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 (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 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)... (2)... (3)… (4)… The issue whether the bail can be denied to a juvenile going by the gravity of the offence, the nature of the crime and so to speak by considering the merits of the prosecution case, has been considered on many occasions by this Court in the following cases: Hon'ble Allahabad High Court in Bhola @ Satender vs. State of U.P. 2015 (2) JIC 38 (Allahabad) has held as under :- "The Criminal Procedure is a beneficial and social - oriented legislation, which needs to be given full effect by all concerned whenever the case of juvenile comes before them. In absence of any material or evidence or reasonable ground to believe that the delinquent juvenile, if released on bail, is likely to come into association with any known criminal or exposing to moral, physical or psychological danger, it cannot be said that his release would defeat the ends of justice." Similar view has been expressed by the Hon'ble Allahabad High Court in Mukesh vs. State of U.P. 2015 (2) JIC page 740 (Allahabad). Hon'ble Allahabad High Court in Ranjit Yadav vs. State of U.P., 2015 (2) JIC page 738 (Allahabad), has also opined that : " .....gravity of the offence is not a ground to deny bail to a juvenile accused, unless the conduct of the accused is such that it indicates that in all likelihood, after being released on bail, a juvenile in conflict with law will indulge into more crime and there are imminent chances of his repeating the crime, bail to a juvenile shall not be ordinarily refused. In Ajay @ Abhinay Kumar vs. State of U.P. 2015 (2) JIC page 223 (Allahabad), Hon'ble High court expressed its view as under :- "once a person is held to be a juvenile in conflict with law then section 12 of the Act would govern the question of grant of bail and the custody of juvenile, it will not be covered by the provisions of the Code of Criminal Procedure. It is noteworthy that the gravity or seriousness of the offence, divorced from the above exceptional reasons has not been taken as an obstacle or hindrance by the legislature to refuse bail to delinquent. No straitjacket formula of inflexible nature can be laid down as it would depend on the facts and circumstances of each case. It is noteworthy that the gravity or seriousness of the offence, divorced from the above exceptional reasons has not been taken as an obstacle or hindrance by the legislature to refuse bail to delinquent. No straitjacket formula of inflexible nature can be laid down as it would depend on the facts and circumstances of each case. Words 'and so justice' should be confined to those facts which show that grant of bail itself is likely to result in injustice. For example, if there is likelihood of juvenile delinquent to whom the bail is granted, interfering with the Courts (course) of justice or he may pressurize the prosecution witnesses, he is likely to abscond from the jurisdiction of the Court, then the burden to show that if the delinquent juvenile is released on bail, there appears reasonable ground for believing that the release is likely to bring him into association with any known criminal or exposing to moral, physical or psychological danger or that his release would defeat the ends of justice is on the prosecution." 9. Hon'ble Supreme Court in the case of Om Prakash Vs. State of Rajasthan and Ors reported in (2012) 5 SCC 201 however has brought in due concern in matter relating to juvenile where the alleged offences committed by the juvenile are heinous like rape, murder, gang rape etc and has indicated that in such matters the nature and gravity of the offences would be relevant and the minor (juvenile) can not getaway by shielding himself behind the veil of minority. It was held by their Lordship that Juvenile Justice Act was enacted with a laudable object of providing a separate forum for holding trial of children by the juvenile court as it was felt that children became delinquent by force of circumstances and not by choice. Hence, they need to be treated with care and sensitivity, while dealing and trying cases of criminal nature. But when an accused is alleged to have committed heinous offence like rape and murder or any other grave offence when he seizes to be a child on attaining the age of 18 years, but seeks protection of the Juvenile Justice Act under the ostensible plea of being a minor, should such an accused be allowed to be tried by a Juvenile Court or should he be referred to a competent court of criminal jurisdiction. It is further highlighted by their Lordship by above mentioned decision that if the conduct of an accused or the method and manner of the commission of the offence indicates evil and well planned design of the accused committing the offence, which indicates more towards the mature skill of an accused than that of a innocent child, then in the absence of any reliable documentary evidence in support of the age of the accused, medical evidence indicating that the accused was a major, cannot be allowed to be ignored by taking shelter of the principle of beneficial legislation like the Juvenile Justice Act subverting the court of justice, which is meant for minors or innocent law breakers and not accused of mature mind who uses the plea of minority as a ploy to shield and protect himself from the sentence of the offence committed by him. 10. The above case laws thus suggest that no strait jacket formula maybe invented for grant or refusal of facility of bail to juvenile in conflict with law and it will depend on the fact and circumstances of each case as well as the manner and method whereby the alleged offence has been committed by the juvenile to gauge as to whether the act of the juvenile attracting penal consequences, has been done with sufficient maturity, skill and evil design, which can be attributed only to a major person or whether the penal act of the juvenile is an act of an innocent law breaker. Needless to say that every case will have to be decided on its merits, demerits and evidence which is being placed against the juvenile as well as the previous criminal history of the juvenile. The gravity of the offence certainly cannot be the sole guiding factor, but the manner and method of the commission of the offence could certainly be taken into consideration while deciding the plea of bail of a juvenile. 11. I have also considered the report of District Probation Officer, Lakhimpur Kheri, which has been submitted before the court below after inspecting the house and surrounding of the house of the appellant. 11. I have also considered the report of District Probation Officer, Lakhimpur Kheri, which has been submitted before the court below after inspecting the house and surrounding of the house of the appellant. I have not found anything therein, which may suggest that after being release on bail the appellant may fall in any kind of bad company or his release will expose him to any physical, moral or psychological danger or will otherwise result in the failure of justice. 12. Coming to the facts of the present case, the evidence which has been placed against the appellant is making of a confession before the police officer of committing the murder of his real uncle-Radheshyam and on his pointing out a blood stained axe is also alleged to have been recovered. It is further alleged that the witness Tirathram had seen the appellant holding blood stained axe at about 2:00-2:30 A.M. in the night wherein the murder of the deceased-Radheyshyam was committed and also that after the incident, he ran away from his house and was not seen thereafter. Therefore, the case against the juvenile Appellant is based only on circumstantial evidence and Keeping in view of the above factual position, it does not appear to be a case wherein grant of bail to accused would act against his interest or will expose him to any moral, physical or psychological danger or his release would otherwise defeat the ends of justice Keeping in view the totality of facts including the report of District probation officer, it appears in the interest of justice and juvenile that keeping an eye on the beneficial purpose of juvenile justice Act, a chance to reform may be provided to Juvenile/ Appellant. The Probation Officer in his report has not mentioned any fact or circumstance which may suggest that there is any likelihood of juvenile coming in association of any criminal, if released on bail or likelihood of exposing him to any moral, physical or psychological danger. Therefore, in absence of any such circumstance, it was obligatory on the Court below to consider the report of District Probation Officer in right perspective. Therefore, in absence of any such circumstance, it was obligatory on the Court below to consider the report of District Probation Officer in right perspective. The learned Court below was required to infer from the positive evidence or material available on record, as if any of the grounds enumerated under section 12 of the Juvenile Justice Act 2000, were available, on the basis of which bail could be denied to Juvenile, and if these grounds were not existing, the juvenile should have been released on bail, acting otherwise would defeat the beneficial purpose of juvenile justice Act. In absence of any such material on record and also in the background of the report of the District Probation officer, the impugned order rejecting bail of accused/ appellant, is not sustainable and the same is not in conformity with the beneficial provisions of the Juvenile Justice Act. The impugned order, therefore deserves to be set aside and the appeal is worth allow. 13. For the reasons mentioned herein above, I find force in the appeal and the same is allowed. The order dated 03.02.2018 passed by Special Judge, Children Court/ Special Judge, POCSO Act/ Additional Sessions Judge, Court No.1, Lakhimpur Kheri. whereby the bail application of juvenile Appellant was rejected, is set aside. 14. Let Juvenile Suraj Yadav be enlarged on bail, in the above mentioned case on executing a personal bond of Rs. 70,000/-, by him as well his guardian/natural mother Smt. Vidyawati with two reliable sureties each in the like amount to the satisfaction of the Court concerned and on submission of undertaking on affidavit by his guardian/natural mother that she will take due care of the juvenile/appellant, and will not allow him to indulge in unlawful or criminal activity or join the company of unlawful elements and will keep him under strict control, failing which the facility of bail granted to Juvenile will be canceled.