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2023 DIGILAW 226 (JHR)

Hasina Khatoon v. State of Jharkhand

2023-02-22

NAVNEET KUMAR

body2023
ORDER : [Navneet Kumar, J.] 1. Heard the learned counsels for the parties. 2. This criminal revision application has been preferred by the petitioner for cancellation of the bail granted to the O.P. No. 2 by the judgment dated 14.02.2022 passed by Additional Sessions Judge-I Pakur in Cr. Appeal No. 4 of 2022, C.N.R. No. JHPK01-000222-2022 arising out of Pakur (M) P.S. Case No. 249 of 2021 corresponding to Children Case No. 05 of 2022 by which the learned trial court has granted the bail to the O.P. No. 2. 3. The prosecution case as alleged in the FIR was that on 22.07.2021, the informant (petitioner) on the occasion of “Bakrid” the Opposite Party No. 2, Nasim Shekh at evening 05.00 p.m. came into the house of the petitioner and started doing obscene act with the petitioner and told her that he would marry her and on that pretext, forcibly committed rape upon her and promised to marry and in this way, the opposite party no. 2 continued to commit rape upon the petitioner and on 29.11.2021 at panchayati no result came out. Thereupon the Mukhiya of the village come to the mother of the petitioner/informant and asked her to take Rs. 10,000/- and get the dispute ended and also threatened her that she would face dire consequences if she would file a case regarding this. 4. Learned counsel appearing on behalf of the petitioner submitted that the age of the opposite party no. 2 on the date of occurrence was determined as 17-18 years and on the date of occurrence the said O.P. No. 2 was declared as child in conflict with law age between the age of 17 to 18 years. Further, it has also been pointed out by the learned counsel appearing for the petitioner that the Juvenile Justice Board vide order dated 09.02.2022 referred the matter u/s 15 of the Juvenile Justice Act, 2015 to the Children Court, Pakur taking into consideration that the child in conflict with law aged 17-18 years had committed heinous offence punishable u/s 376 of IPC and 4/8 of POCSO Act of 2012 and referred the entire records of the case on 09.02.2022 to the Children Court u/s 15 of the Juvenile Justice Act, 2015 for regular hearing of the case as major offender. Further it has been submitted that the bail application of Opp. Further it has been submitted that the bail application of Opp. No. 2 was already rejected by the Juvenile Justice Board on 28.01.2022 and thereafter the O.P. No. 2 had preferred the Criminal appeal No. 4/22 before the Children Court for the grant of bail challenging the order of Board dated 28.01.2022. Further, it has been submitted on behalf of the petitioner that during the pending of the Criminal Appeal No. 4/2022, the entire case record was transmitted to the Children Court u/s 15 of the Juvenile Justice Act, 2015 by the Juvenile Justice Board by taking into consideration that the child in conflict with law was aged between to 17 to 18 years from the date of occurrence and the nature of crime was heinous. In this background, it has further been submitted by learned counsel appearing on behalf of the petitioner that the lower appellate court i.e. Children Court allowed the Criminal Appeal No. 4 of 2022 by which the appellant was directed to be enlarged on bail on furnishing bail bond of Rs. 7,000/- (Rupees Seven Thousands Only) with two sureties of like amount each subject to the conditions as laid down in the impugned order and therefore it is submitted that judgment passed in Criminal Appeal No. 4 of 2022 on 14.02.2022 is bad in law because the entire case record was transmitted to the Children Court being the trial court for the trial of the case u/s 15 of the Juvenile Justice Act, 2015 and hence the grant of bail on 14.02.2022 vide Criminal Appeal No. 4 of 2022 in the capacity of appellate court being subsequent development that the said appellate court became trial court is bad in law and is fit to be set aside. 5. It has further been submitted that the O.P. No. 2 should have filed fresh bail application and the Children Court should have heard the fresh bail application instead of that criminal appeal which was preferred against the order of J.J.B. who has rejected the bail application of the O.P. No. 2. 6. 5. It has further been submitted that the O.P. No. 2 should have filed fresh bail application and the Children Court should have heard the fresh bail application instead of that criminal appeal which was preferred against the order of J.J.B. who has rejected the bail application of the O.P. No. 2. 6. In view of the fact that the Children Court has become the original court of the trial and at the same time being the original court of the trial the matter could not be heard as an appellate authority and therefore the order dated 14.02.2022 passed in Criminal Appeal No. 4 of 2022 is not tenable in the eyes of law. 7. On the other hand, learned Addl. P.P. for the State assisted by the learned counsel for the O.P. No. 2 stated that it is only a technical issue involved in this case but in sum and substance the Children Court being originally the Appellate Court with respect to the order of the J.J.B. had passed the impugned order but incidentally during the pending of the Criminal Appeal No. 4 of 2022, in question, the said Children Court became trial court to conduct the trial of the child in conflict with law (O.P. No. 2) when the entire case record was transmitted to the said children court by the J.J.B. under section 15 of the J.J. Act, 2015. It has further been submitted on behalf of the learned Addl. P.P. assisted by the learned counsel of O.P. No. 2 that in the present case, the children court as a matter of fact has passed the bail order by way of Criminal Appeal No. 4 of 2022 and therefore these technicalities will not cause any prejudice to either of the parties in providing substantive justice to O.P. No. 2 and therefore there is no substance on the ground taken by the petitioner to cancel the bail of the O.P. No. 2. 8. Having heard the parties, perused the record. 9. 8. Having heard the parties, perused the record. 9. It is found that the O.P. No. 2 a child in conflict with law aged between 17-18 years in connection with the Pakur (M) P.S. Case No. 249 of 2021 corresponding to Children Case No. 05 of 2022 registered u/s 376 of IPC and u/s 4/8 of POCSO Act and the impugned order in question dated 14.02.2022 has been passed by way of the criminal appeal by the Children Court, Pakur. As a matter of fact it is manifest that in sum and substance it is a bail order passed by the Children Court. During the pending of this Criminal Appeal No. 04/2022 the entire case records pending before the concerned JJB has been referred to Children Court u/s 15 of the J.J. Act and therefore, seemingly the Children Court has lost the jurisdiction to hear the criminal appeal because it has become the original trial court after the transmission of the record from J.J. Board u/s 15 of the J.J. Act. It is found that it is only a technical issue otherwise the Children Court has got the jurisdiction to hear the bail application of O.P. No. 2 either by way of Criminal Appeal No. 04/2022 or by of regular bail application as original trial court. Therefore, substantially for the ends of justice no error has been committed by the Children Court by passing the order of bail in Cr. Appeal 04/2022 by which the O.P No. 2, the child in conflict with law has been enlarged on bail. It is also found that the petitioner did not make submissions on the merit of the grounds of granting bail to O.P. No. 2, therefore, there was no occasion for this Court to appreciate the impugned order on merit of granting bail by the Children Court in Cr. Appeal No. 4 of 2022 10. It is also found that the petitioner did not make submissions on the merit of the grounds of granting bail to O.P. No. 2, therefore, there was no occasion for this Court to appreciate the impugned order on merit of granting bail by the Children Court in Cr. Appeal No. 4 of 2022 10. Further it is found that charge in this case has been framed on 24.03.2022 against the O.P. No. 2 for the offence punishable u/s 376 of IPC and u/s 4 of POCSO Act, 2012 and the trial of the case has commenced and the case was running for the prosecution evidence and therefore at this stage, this Court does not find it just and fair to interfere in the impugned order dated 14.02.2022 passed by the learned Additional Sessions Judge-I, Pakur in Criminal Appeal No. 04 of 2022 arising out of Pakur (M) P.S. Case No. 249 of 2021, corresponding to Children Case No. 05 of 2022 by which the O.P. No. 2 was released on bail. 11. In the result, this criminal revision is dismissed being devoid of merit.