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2019 DIGILAW 538 (ORI)

Suku v. State of Odisha

2019-08-22

S.K.SAHOO

body2019
ORDER : S.K. Sahoo, J. 1. Heard Mr. Anirudha Das, learned counsel for the appellants and Mr. Priyabrata Tripathy, learned counsel for the State of Odisha. 2. This is an appeal under Section 101(5) of Juvenile Justice (Care and Protection of Children) Act, 2015 (hereafter 'J J Act') challenging the order dated 16.09.2017 passed by the learned Judge, Children's Court, Dhenkanal in rejecting their bail application in connection with J.C. No. 05 of 2017 arising out of Bhuban P.S. Case No. 42 of 2017 for the alleged commission of offences punishable under sections 302/201/34 of the Indian Penal Code. 3. Learned counsel for the petitioners submitted that the petitioners are the children in conflict with law and they are in judicial custody since 05.03.2017 and after submission of charge sheet under sections 302/201/34 of the Indian Penal Code, they are facing trial before the Children's Court, Dhenkanal. He further submitted that the occurrence in question took place on 25.02.2017 and the dead body of the deceased Maina Tudu was recovered from a jungle and the F.I.R. was lodged by her father Krushna Tudu on 02.03.2017 suspecting the involvement of the petitioners in the alleged crime and there are no eye witnesses to the occurrence and the case is based on circumstantial evidence and the circumstances are the confessional statements of the petitioners before police and recovery of scarf of the deceased at the instance of the petitioners under section 27 of the Evidence Act. He further submitted that the trial of the case has made substantial progress and there is no chance of absconding of the petitioners or tampering with the evidence at this stage and the learned trial Judge has not assigned any cogent reason for rejecting the application for bail and in view of the young age of the petitioners and their period of detention and particularly keeping in view the provision under section 12 of the JJ Act, the appeal be allowed and the petitioners may be released on bail. 4. 4. Learned counsel for the State has produced the case diary and contended that as per the post mortem report the cause of death of the deceased was due to asphyxia caused on account of constriction of neck by ligature and the materials available on record indicate that the murder was committed by strangulation, however, he fairly submitted that the involvement of the petitioners in the alleged crime is based on their confessional statements before police as well as recovery of scarf. 5. In view of the proviso to sub-section (1) of section 12 of the JJ Act, the child in conflict with law can be denied the privilege of bail only if the Court is of the opinion that there appears reasonable grounds for believing that such child after release is likely to come in association with any known criminal or be exposed to moral, physical or psychological danger or that his release would defeat the ends of justice. It is not only the requirement on the part of the Court to record the reasons for denying the bail but also the circumstances that led to such a decision. 6. J.J. Act is a beneficial legislation intended for reform of the juvenile/child in conflict with the law. The law demands that justice should be done not only to the accused but also to the accuser. The Act has a solemn purpose to achieve betterment of the juvenile offenders. It has a reformative approach but does not completely shun retributive theory. Legislature has preserved larger interest of the society even in cases of bail to a juvenile. The Act seeks to achieve moral, physical and psychological betterment of juvenile offenders. If it is found that the ends of justice would be defeated or that goal desired by the legislature can be achieved by detaining a juvenile offender in a juvenile home, bail can be denied to him. The legislature in its wisdom has carved out exceptions to the rule of bail to a juvenile. 7. The learned Judge, Children's Court has assigned the following reasons for rejecting the' application for bail i.e. (i) there is every likelihood of absconding of both the appellants in the event of their release on bail; (ii) the safety of the appellants are also doubtful in the event of their release on bail. 7. The learned Judge, Children's Court has assigned the following reasons for rejecting the' application for bail i.e. (i) there is every likelihood of absconding of both the appellants in the event of their release on bail; (ii) the safety of the appellants are also doubtful in the event of their release on bail. The reasons assigned are not in consonance with the proviso to sub-section (1) of section 12 of the JJ Act There are also no material on record as to on what basis the learned trial Judge came to such findings. 8. Considering the submissions made by the learned counsel for the respective parties, the nature of accusation against the petitioners, absence of any direct evidence, the nature of circumstantial evidence on record, progress of the trial, their young age as well as taking into account the period of detention of the petitioners in judicial custody, I am inclined to release of the petitioners on bail. 9. Let the petitioners be released on bail in the aforesaid case on the condition of their respective mothers or any close family members furnishing bail bond of Rs. 9. Let the petitioners be released on bail in the aforesaid case on the condition of their respective mothers or any close family members furnishing bail bond of Rs. 50,000/- (rupees fifty thousand) each with two local solvent sureties each for the like amount to the satisfaction of the Court in seisin over the matter with further terms and conditions as the learned Court may deem just with further conditions that:- (i) their respective mother guardians/close family members shall furnish an undertaking that the petitioners shall not be allowed to come in contact with any unsocial and criminal association and shall not be exposed to any moral, physical or psychological danger and further they shall ensure that the petitioners will not indulge in any criminal offence and they shall further ensure the presence of the petitioners during trial before the Court as and when required by the Court; (ii) the petitioners and their respective mothers/close family members will report before the District Probation Officer once in a month on every first Monday for a period of six months from the date of release except which falls on holidays and in that event they will report on the next working day; (iii) the District Probation Officer shall keep a strict vigilance on the activities of the petitioners while on bail and regularly draw his social investigation report which shall be submitted to the learned trial Court on periodical basis as the Court chooses. 10. Accordingly, the CRLA is allowed and the impugned order is hereby set aside. 11. Urgent certified copy of this order be granted on proper application. 12. A free copy of the order be handed over to the learned counsel for the State.