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2020 DIGILAW 268 (UTT)

Yunus (juvenile) v. State Of Uttarakhand

2020-07-06

MANOJ KUMAR TIWARI

body2020
JUDGMENT Manoj K. Tiwari, J. - The revisionist in the present revision is a juvenile in conflict with law. He is involved in F.I.R. No. 75 of 2019, under Sections 363, 364, 506, 302, 201, 120-B I.P.C., Police Station Khatima, District Udham Singh Nagar. 2. An FIR was filed against the revisionist under Sections 363, 364 and 506 I.P.C. Subsequently, Sections 302, 201 and 120-B I.P.C. were added. The revisionist, being a juvenile, moved a bail application, being Bail Application No. 52 of 2019, before Juvenile Justice Board, Rudrapur, District Udham Singh Nagar, which was rejected vide order dated 27.07.2019. Aggrieved by the said order, revisionist preferred Criminal Bail Appeal No. 225 of 2019 before learned Fast Track Court/Additional Sessions Judge/Special Judge, POCSO, District Udham Singh Nagar, which was also dismissed vide judgment and order dated 09.08.2019. 3. In view of this Court, both the courts below have not appreciated the provision of law, which ought to have been considered while considering the bail application of a juvenile. 4. Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015 deals with bail to a child in conflict with law. Section 12 of the said Act is extracted below for ready reference:- "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 nonbailable 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-in-charge 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." 5. A plain reading of Section 12(1) of the Act reveals that, any person, who is apparently a child, shall be entitled to 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. The distinction between bailable or non-bailable offence has been done away with in respect of a juvenile. In other words, every juvenile is entitled to be released on bail except in circumstances where his/her release will bring him/her into association with any known criminal or expose him/her to moral, physical or psychological danger or that his release would defeat the ends of justice. The expression 'child', as defined in Section 2 (12) of the Act, is as follows:- "'child' means a person who has not completed eighteen years of age." 6. Admittedly, revisionist was less than 16 years of age on the date of incident, thus, he is a child as defined in Section 2(12) of the Act. Therefore, provision contained in Section 12 of the Act are attracted. 7. Proviso to Section 12(1) of the Act reveals that the guiding principle for refusing bail is the interest and welfare of the child rather than the offence committed. The three grounds on which bail can be refused are that (i) the release on bail is likely to bring the child into association with any known criminal; or (ii) expose him to moral, physical or psychological danger; or (iii) his release would defeat the ends of justice. The three grounds on which bail can be refused are that (i) the release on bail is likely to bring the child into association with any known criminal; or (ii) expose him to moral, physical or psychological danger; or (iii) his release would defeat the ends of justice. The proviso to Section 12(1) of the Act further provides that Board has to record reasons for denying the bail and the circumstances that led to such a decision. 8. A perusal of the order dated 27.07.2019 passed by learned Juvenile Justice Board reveals that the sole ground on which bail was refused to the revisionist is that the offence alleged to have been committed by him is heinous in nature. Learned Additional Sessions Judge dismissed the Appeal of the revisionist by holding that, as per Social Investigation Report, revisionist had studied only up to IVth standard and he was having company of persons elder in age to him. 9. In the present case, bail has been refused based on the gravity of the offence alleged to have been committed by the revisionist. Learned Additional Sessions Judge has dismissed his Appeal, by holding that there is likelihood of the juvenile coming into contact with anti-social elements. Except the present F.I.R., no F.I.R. has been registered against the revisionist. Bail can be refused if it is likely to bring the child into association with any known criminal. The word 'known' has not been used by the legislature without purpose. By use of the word 'known', the legislature requires that the Court must know the full particulars of the criminal with whom the delinquent is likely to come into association. There is no such evidence or finding. 10. In such view of the matter, this Court has no hesitation in holding that learned Courts below erred in not releasing the juvenile on bail. 11. Accordingly, the Criminal Revision is allowed. Impugned judgment & order dated 09.08.2019 passed by learned Fast Track Court/ Additional Sessions Judge/ Special Judge, POCSO, District Udham Singh Nagar in Criminal Bail Appeal No. 225 of 2019 and also the order dated 27.07.2019 passed by Juvenile Justice Board, Rudrapur, District Udham Singh Nagar in Bail Application No. 52 of 2019 are set aside. 12. Impugned judgment & order dated 09.08.2019 passed by learned Fast Track Court/ Additional Sessions Judge/ Special Judge, POCSO, District Udham Singh Nagar in Criminal Bail Appeal No. 225 of 2019 and also the order dated 27.07.2019 passed by Juvenile Justice Board, Rudrapur, District Udham Singh Nagar in Bail Application No. 52 of 2019 are set aside. 12. Let the revisionist be enlarged on bail in the aforesaid crime on furnishing two sureties and personal bond of ' 25,000/- of the father of the revisionist to the satisfaction of the Juvenile Justice Board/court concerned. It is further directed that the custody of the juvenile/revisionist shall be given to his father. Father of the revisionist shall final an affidavit along with personal bond to the effect that, during trial, juvenile shall remain in his custody and control. 13. The grant of bail to the revisionist shall be subject to the condition that (a) his father will take the revisionist to the concerned police station once in every fortnight; (b) revisionist shall not leave the jurisdiction of the concerned police station without prior permission of this Court; (c) revisionist shall not try to contact or influence the witnesses in any manner or temper with the evidence and the prosecution; and in case of violation of any of these conditions, the respondent-State will be at liberty to apprise this Court for cancellation of his bail. 14. All pending applications stand disposed of.