Mithun Sahani @ Mithun Kumar v. The State Of Bihar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL REVISION No.278 of 2023 Arising Out of PS. Case No.-415 Year-2021 Thana- NAUTAN District- West Champaran ====================================================== MITHUN SAHANI @ MITHUN KUMAR son of Late RAmesh Sahani @ Late Ramesh Chaudhary VILLAGE- JHAKHARA MANIYARI POLICE STATION JAGDISHPUR DISTRICT WEST CHAMPARAN ... ... Petitioner/s
Versus
The State of Bihar ... ... Respondent/s ====================================================== Appearance :
For the Petitioner/s :
Mr. Brij Kishor Mishra For the Respondent/s :
Mr. Md. Shakir Ahmad ====================================================== CORAM: HONOURABLE MR. JUSTICE ANIL KUMAR SINHA ORAL ORDER 07-08-2023 Heard learned Counsel for the petitioner and learned Additional Public Prosecutor appearing for the State.
2. This revision application has been filed against the judgment and order dated 20.08.2022 passed by learned 1st Additional District and Sessions Judge-cum-Special Judge (SC and ST), West Champaran at Bettiah, in Criminal Appeal No. 18 of 2022. By impugned order, the learned 1st Additional District and Sessions Judge-cum-Special Judge (SC and ST), West Champaran at Bettiah, has affirmed the order, dated 22.03.2022, passed by the Juvenile Justice Board, Bettiah, in Juvenile Justice Board No. 717 of 2021, arising out of Nautan Police Station
2/7 Case No. 415 of 2021, registered for the offences punishable under Sections 272/273/328/307/304/120(B) of the Indian Penal Code and Sections 30(a)/37(B)/33/34 of the Bihar Prohibition and Excise Act, 2016.
3. The prosecution case, as per the First Information Report, is that, on 04.11.2021, Sub Inspector, Nautan Police Station got information that one Bachcha Yadav and others have died and some are hospitalized due to consumption of spurious wine. Upon enquiry, it was found that accused persons were indulge in buying and selling of illicit wine in South Telhua village.
4. Learned Counsel for the petitioner submits that the petitioner is not named in First Information Report and has been made accused during investigation. He next submits that he was declared juvenile by order, dated 03.01.2022 passed by the learned Juvenile Justice Board, Bettiah, after coming to the conclusion that the petitioner was minor at the time of alleged occurrence and was aged about 15 years and 13 days. He next submits that by the impugned order, the learned 1st Additional District and Sessions Judge-cum-Special Judge (SC and ST), West Champaran at Bettiah, has rejected the prayer of the petitioner for bail on erroneous conclusion that there is a
3/7 possibility that due to lack of discipline in family, the petitioner, if released on bail, would fall into bad company and/or grant of bail to the petitioner may cause moral, physical and psychological danger to him which would defeat the ends of justice. He next submits that learned 1st Additional District and Sessions Judge-cum-Special Judge (SC and ST), West Champaran at Bettiah, did not consider the social investigation report in correct legal perspective. The petitioner is in custody since 18.11.2021.
5. Learned Counsel relies upon Section 3 (i), (iv), (v) and (xiv) of the Juvenile Justice (Care and Protection of Children) Act, 2015, (hereinafter referred to as "the Act"), which are quoted herein below:- "(i) Principle of presumption of innocence:- Any child shall be presumed to be an innocent of any mala fide or criminal intent up to the age of eighteen years.
(iv) Principle of best interest:- All decisions regarding the child shall be based on the primary consideration that they are in the best interest of the child and to help the child to develop full potential.
(v) Principle of family
4/7 responsibility:- The primary responsibility of care, nurture and protection of the child shall be that of the biological family or adoptive or foster parents, as the case may be.
(xiv) Principle of fresh start:- All past records of any child under the Juvenile Justice system should be erased except in special circumstances"
6. Learned Counsel, referring to above mentioned provisions of law, submits that as per the scheme of the Act there is presumption of innocence of a child in conflict with law and all decisions regarding the child shall be taken in consonance with the principle of the best interest of the child. He further submits that the principle of family responsibility and principle of fresh start have also been recognized under the Act.
7. In reference to Section 12 of the Act, learned Counsel for the petitioner submits that bail to a child in conflict with law is a rule and denial is exception.
8. Learned Counsel, in the aforesaid background, submits that the learned 1st Additional District and Sessions Judge-cum-Special Judge (SC and ST), West Champaran at Bettiah, has failed to consider the scheme of the Act and has committed irregularity in arriving at the conclusion that due to
5/7 lack of discipline in family, the petitioner, if release on bail, may fall into bad company and/or he may expose to the moral, physical or psychological danger which would defeat the ends of justice.
9. Learned Counsel further submits that the mother of the petitioner is ready to take proper care of the petitioner after release on bail and shall not allow him to fall into bad company and would try to bring change in his behaviour, if required.
10. On the other hand, learned Additional Public Prosecutor submits that from perusal of Section 12 of the Act, it appears that bail is a matter of right to a child in conflict with law and denial is exception and in view of the fact that mother has given an undertaking to reform her child, i.e. the petitioner, this Court may consider to pass appropriate order in the best interest of the child in conflict with law.
11. A Bench of this Court, in the case of Lalu Kumar @ Lalbabu @ Lallu v. State of Bihar, reported in 2019 (4) PLJR 833, while interpreting Section 12 of the Act has laid down the principle that the Board while considering bail of a Juvenile is duty bound to follow the principle of 'best interest', 'repatriation' and 'restoration' of child. The gravity and nature of offence are immaterial for consideration of bail of a juvenile.
6/7 As per Section 12 of the Act of 2015, an application for bail is not decided by reference to classification of offences as bailable or non-bailable under the Criminal Procedure Code.
12. Having regard to the submissions made by the parties and on perusal of the impugned order, I am of the considered opinion that there is possibility of reform in the petitioner inasmuch as he has got no criminal antecedent and the mother of the petitioner is ready to take proper care of the petitioner after his release on bail as such there is no likelihood that the petitioner will fall into bad company and/or he may expose to the moral, physical or psychological danger which would defeat the ends of justice. As such, the conclusion arrived at by learned 1st Additional District and Sessions Judge-cumSpecial Judge (SC and ST), West Champaran at Bettiah, is not sustainable in the facts and circumstances of the case.
13. Accordingly, this revision application is allowed and the order dated 20.08.2022, passed by learned 1st Additional District and Sessions Judge-cum-Special Judge (SC and ST), West Champaran at Bettiah, in Criminal Appeal No. 18 of 2022, and order dated 22.03.2022, passed by the Juvenile Justice Board, Bettiah, in Juvenile Justice Board No. 717 of 2021 are hereby set aside.
7/7
14. Let the petitioner, above named, be released on bail on furnishing bail bond of Rs. 10,000/- (ten thousand) each with two sureties of the like amount each to the satisfaction of learned Juvenile Justice Board, Bettiah, in connection with Juvenile Justice Board No. 717 of 2021, arising out of Nautan Police Station Case No. 415 of 2021, subject to the following conditions:- (i) that one of the bailors shall be the mother of the petitioner;
(ii) that the mother of the petitioner shall file an affidavit before the learned Juvenile Justice Board, Bettiah, giving specific undertaking that after release of the petitioner on bail, she will take proper care of the petitioner and will not allow him to fall into bad company.
(Anil Kumar Sinha, J) ashwani/- U √ T √