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2021 DIGILAW 220 (ORI)

Cicl-debasis @ Tapas Khuntia v. State Of Odisha

2021-05-17

SAVITRI RATHO

body2021
ORDER 1. I have heard Mr. Pitambar Jena, learned counsel for the petitioner and Mr. G.N. Rout, learned Addl. Standing Counsel for the State in video conferencing mode. 2. This is an application under Section 102 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (in short 'the JJ Act ') for grant of bail to the CICL (name withheld) in connection with J.J. Case No.42 of 2020 arising out of Nayakote P.S. Case No.59 of 2020 in the Court of the Juvenile Justice Board, Keonjhar, registered for commission of offence punishable under Section 302/34 of I.P.C and challenging the orders passed by the learned Additional Sessions Judge cum- Special Judge, Keonjhar and the J.J. Board, Keonjhar rejecting his prayer for bail. 3. The prayer for bail of the CICL was rejected by the learned J.J. Board on 15.10.2020 and thereafter by the learned Addl. Sessions Judge -cum- Special Judge, Keonjhar in Criminal Appeal No.22 of 2020 on 22.12.2020. 4. The said orders have been challenged in this criminal revision. 5. The prosecution allegations in brief are that the deceased had illicit relations with the mother of the CICL and on 13.10.2020 at about 6.00 p.m., the deceased had come to the house of the CICL and the latter assaulted the deceased with an axe which resulted in his death.Multiple incised injuries were found on the body of the deceased. 6. Learned counsel for the petitioner submits that the petitioner-CICL is aged about 17 years old. He is detained in the observation home since 15.10.2020 and charge sheet has been filed in the meanwhile. He further submits he has no criminal antecedent and the social investigation report is favourable and his release is necessary in view of his age and in view of the mandate of Sec. 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015. He states that omnibus allegations have been made against the petitioner. He further submits that the CICL is a student of +2 Arts of Pateswar Higher Secondary School (Jr. College), Suakati, Keonjhar and has filled up the form to appear in the Final Examinations which were scheduled to be held in May 2021 for which he has filed I.A No 218 of 2021 for interim bail. He further submits that the CICL is a student of +2 Arts of Pateswar Higher Secondary School (Jr. College), Suakati, Keonjhar and has filled up the form to appear in the Final Examinations which were scheduled to be held in May 2021 for which he has filed I.A No 218 of 2021 for interim bail. He has relied on the decisions rendered by this Court in the case of Naresh Naik -Vrs.- State : (2008) 41 OCR 553, Ashik Kumar Sahu -Vrs.- State : (2012) 52 OCR 356, Sumanta Bindhani -Vrs.- State: 2017 (1) OLR 1137 , Ranjit Paika -Vrs.- State : 2018 (II) OLR 13 , Chittaranjan @ Biswajit Sahoo -Vrs.- State : 2018 (II) OLR 377 and Re-A Juvenile -Vrs.- State : (2009) 42 OCR 315 in support of his prayer for bail. 7. This Court in the case of Naresh Naik (supra) referred to the ratio in the case of Abrahim Kristian -Vrs.- State : 1989 (1) OLR 89 that release of a juvenile on bail is the rule unless there appear reasonable grounds for believing that his release is likely to bring him in association with known criminals or expose him to moral danger and relying on the favourable report of the Superintendent Probation Hostel, directed for release of the juvenile on bail. In the case of Ashik Kumar Sahu (supra), who was an accused in case registered under section 376 (2) (g) I.P.C., this Court referring to Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2000 directed the JCL to be released on bail. In the case of Sumanta Bindhani (supra) who was accused in a case under Section 20(b) (ii) (c) of the NDPS Act, this Court held that Section 12 of Juvenile Justice (Care and Protection of Children) Act, 2015 over rides the provisions of Section 37 of the NDPS Act and directed for release of the petitioner therein. In the case of Chittaranjan @ Biswajit Sahoo (supra), the CCL had been chargsheeted for an offence under Section 306 I.P.C. Referring to the provisions of section 12 of the Act, it was held that gravity of the offence is not to be considered but the circumstances in which the offence was committed and whether his environment is conducive is to be considered. 8. 8. In the case of Re-A Juvenile (supra) where the accused was involved in a case under section 302 I.P.C. and other sections, this Court held that the mandate of section 12 of the Act is that a juvenile is to be released on bail however heinous the crime may be and the only restriction is availability of reasonable grounds that his release is likely to bring him in association with known criminals or expose him to any moral, physical or psychological danger or his release would defeat the ends of justice. Referring to the allegations against the petitioner, it was held that there was scope of psychological danger if he was not released on bail and the prayer for bail was allowed. In the case of Ranjit Paika and another (supra) the appellants had been convicted for commission of offences under Section 20(b) (ii) (c) of the NDPS and an application had been filed for treating the Appellant No.2 Bijay Paika as a juvenile and to release him on bail as he had stayed in custody for more than three years. Relying on the ratio laid down by the Hon'ble Supreme Court in the case of Ajay Kumar -Vrs.- State of MP : (2010) 47 OCR (SC) 855 and Mohan Mali -Vrs.- State of M.P. : (2010) 46 OCR (SC) 665 that a juvenile can be kept in special home for a maximum period of three years and referring to the rights of juveniles and the intention of the Legislature while enacting the 2000 Act, the appellant No 2 who had been declared as a juvenile by an earlier order, was directed to be released on bail as he had stayed in custody for more than four years. 9. Learned counsel for the State has produced the case diary along with social investigation report of the CICL. Referring to the statements of his mother Laxmipriya Khuntia; immediate post occurrence witnesses Pranabandhu Khuntia and Jugal Khuntia, he has stated that the CICL has inflicted a number of injuries on the deceased which resulted in his death. He does not dispute the submission that the CICL has no criminal antecedents but objects to the grant of bail stating that the CICL has committed a heinous offence and his institutional care is necessary for his reformation which will not be possible if he is released on bail. 10. He does not dispute the submission that the CICL has no criminal antecedents but objects to the grant of bail stating that the CICL has committed a heinous offence and his institutional care is necessary for his reformation which will not be possible if he is released on bail. 10. The CICL had been released on interim bail from 01.0.2021 till 08.03.2021 to enable him to fill up his form for appearing in the Annual Higher Secondary Examinations, 2021. The CICL has surrendered in time and alongwith a Memo on 15.03.2021 has filed the order dated 09.03.2021 of the JJ Board accepting his surrender. 11. It appears from the said order that summons has been issued to the chargesheet witnesses on that day. The order dated 18.02.2021 passed by the JJ Board treating him as a juvenile to be tried by the Board has also been filed. On 24.02.2021 the copy of the order dated 15.10.2020 passed by the JJ Board rejecting his prayer for bail had been filed. 12. I have perused the case diary, social background report, order of the JJ Board treating him as a juvenile and the order of the JJ Board rejecting the prayer for bail and the order of the learned Additional Sessions Judge, rejecting the prayer for bail. 13. From the statement of Laxmipriya Khuntia, it is apparent that she was earlier involved with the deceased and he would come to her house during absence of her husband and compel her to have physical relations inspite of her protest. On the relevant day when her husband had gone to the hospital, the deceased came in an inebriated condition to her house and was compelling her to have physical relations with him. When she refused, he threatened her with a tangia. This infuriated the CICL who grabbed the tangia and assaulted the deceased. The two post occurrence witnesses Pranabandhu Khuntia and Jugal Khuntia have stated that on hearing shouts they went to the spot and saw the deceased lying with bleeding injuries and the CICL standing nearby holding a tangia. The statements Dhiren Khuntia and Rangadhar Khuntia have stated that the deceased used to come to the house of the CICL in the absence of his father and harass them. On the date of occurrence the deceased had come and was harassing them for which the CICL assaulted him with a tangia. 14. The statements Dhiren Khuntia and Rangadhar Khuntia have stated that the deceased used to come to the house of the CICL in the absence of his father and harass them. On the date of occurrence the deceased had come and was harassing them for which the CICL assaulted him with a tangia. 14. The social background report by the Child Welfare Police Officer in respect of the CICL indicates he has studied upto Class XI, his father is employed and mother is a housewife and his younger brother studies in class VI. His habits are watching TV and movies, playing indoor and outdoor games, reading books, drawing, painting, acting and singing. The reason for leaving school has been indicated to be sudden demise of his parents which appears to be a mistake as the CICL is represented by his father guardian in this bail application and there is no material to show that his mother has expired. The report also indicates that the majority of his friends are educated and he has not been subjected to any form of abuse and is not a victim of any offence and is not used by any gangs or adults for drug peddling and he has recommended that the child be given a chance to remain with his family for future reformation. 15. From a perusal of Section 12 of the Juvenile Justice (Care and Protection of Children) Act 2015 (in short 'JJ ACT '), it is clear that a delinquent juvenile has to be released on bail irrespective of nature of offence alleged to have been committed by him unless it is shown that if he is released on bail there are reasonable grounds to believe that the release of the CICL 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. The nature of offence and the merits of the case do not have any relevance but can be considered to some extent if they are of such a nature as would defeat the ends of justice. But such materials have to be produced by the prosecution to make out any of the grounds provided in the Section 12(1) of the JJ Act of 2015, which may persuade the Court not to release the juvenile on bail. But such materials have to be produced by the prosecution to make out any of the grounds provided in the Section 12(1) of the JJ Act of 2015, which may persuade the Court not to release the juvenile on bail. But in this case, there is nothing on record to show that the release of the petitioner is likely to bring him into association with any known criminal or expose to moral, physical or psychological danger or that his release would defeat the ends of justice. 16. It appears that the JJ Board has by order dated 18.02.2021 decided that the CICL should be treated as a juvenile and tried by the Board. But before that, by order dated 15.10.2020, the JJ Board has rejected the prayer for bail observing that the CICL has committed murder of Ganeswar Khuntia by means of an axe for which the Board feels that institutional care is necessary for his reformation considering the gravity of the offence. There is no discussion or finding that if the CICL if released on bail, he would come into association with any known criminal or his release would expose him to moral, physical or psychological danger or defeat the ends of justice. The Appellate Court has referred to the provisions of Section 12 of the Act, but dismissed the appeal observing that there is a strong prima facie case showing his involvement for which there exists every likelihood of absconding and influencing prosecution witnesses. It has further observed that the allegations are grave, brutal and serious, he needs reformation which can be done only in the observation home and that in view of the gravity of the offence there is chance of physical or moral danger to the appellant at that stage and his release will spread a bad message in the society and will encourage others to commit similar offence. 17. There is no reference to the social background report in the impugned orders. Non consideration of the provisions of section 12 as well as mere repetition of the provisions without actually applying the same to the facts of the case with reference to the social investigation report renders these orders liable for interference. 18. The nature of allegations against the CICL prima facie do not indicate that the CICL is a hardened criminal or has committed a pre planned murder. 18. The nature of allegations against the CICL prima facie do not indicate that the CICL is a hardened criminal or has committed a pre planned murder. On the other hand, the circumstances indicate that infuriated by the conduct of the deceased who was harassing his mother, the CICL has assaulted the deceased with a tangia. That apart, the fact that he had availed interim bail to fill up his form for appearing in the +2 examinations indicates that the CICL is interested in pursuing his studies and he has not misused the liberty granted to him as he has surrendered in Court after expiry of the period of interim bail, within the time specified. He has filed another I.A for interim to appear in the +2 final examinations which were scheduled to commence this month but were postponed, due to resurgence of the covid pandemic. 19. Therefore considering the nature of allegations against the CICL, the mandate of Section 12 of the JJ Act, the social investigation report, the decisions of this Court referred to above, the desire of the CICL to continue his studies and the conduct of the CICL which precludes any reasonable apprehension of his absconding from the process of justice and absence of material to indicate that if he is released on bail, the CICL would come into association with any known criminal or would be exposed to moral, physical or psychological danger or his release would defeat the ends of justice, I am inclined to allow this application. The impugned orders refusing to grant bail to the CICL are therefore set aside. 20. Let the petitioner-CICL represented through his natural guardian-father be released on bail to the satisfaction of the Court in seisin of the case in the aforesaid case on such terms and conditions as he deems just and proper including the following conditions:- (i) His father-natural guardian shall furnish an undertaking that after release, the CICL will not be allowed to come in contact with any criminals. (ii) The CICL will not indulge in any criminal activity. (iii) He will pursue his studies. (iv) The concerned Child Probation Officer shall maintain general oversight and supervision over the CICL by visiting his house time-to-time as may be deemed necessary, to ensure that he is not exposed to any moral, physical or psychological danger and is pursuing his studies. (ii) The CICL will not indulge in any criminal activity. (iii) He will pursue his studies. (iv) The concerned Child Probation Officer shall maintain general oversight and supervision over the CICL by visiting his house time-to-time as may be deemed necessary, to ensure that he is not exposed to any moral, physical or psychological danger and is pursuing his studies. No observation in this order shall be construed as an expression on the merits of the case. 21. The CRLREV is accordingly disposed of. As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the petitioner may utilize a printout of the order available in the High Court's website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court's Notice No.4587 dated 25th March, 2020 as modified by Court's Notice No.4798 dated 15th April. 2021. . Savitri Ratho, Justice. I.A. No 11 of 2021 and I.A. No 218 of 2021 In view of the order passed in CRLREV No.11 of 2021, these I.As for interim bail are disposed of as infructuous.