Md. Arbaz @ Chocha v. The State Of Bihar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL REVISION No.291 of 2023 Arising Out of PS. Case No.-350 Year-2022 Thana- RAMPUR District- Gaya ====================================================== MD. ARBAZ @ CHOCHA Son of Md. Feku Resident of mohalla - Katari Paharpar, P.S. - Chandauti, Distt. - Gaya. (Here in after Reffered as to the C.I.C.L.), under guardianship of his father namely Mohammad Feku, aged about 56 years, (Male), S/O - Mohammad Salim, resident of village - Katari Hill ambedakar more, P.S. - Chandauti, Distt. - Gaya ... ... Petitioner/s
Versus
THE STATE OF BIHAR ... ... Respondent/s ====================================================== Appearance :
For the Petitioner/s :
Mr.Vijay Kumar For the Respondent/s :
Mr.Binod Kumar ====================================================== CORAM: HONOURABLE MR. JUSTICE ANIL KUMAR SINHA ORAL ORDER 03-08-2023
1. Heard the parties.
2. This Criminal Revision application has been filed against the order dated 10.11.2022 passed by learned Juvenile Justice Board Gaya in connection with Rampur PS Case No. 350 / 2022 , G.R. No. 3928 / 2022, Misc. No. 300 / 2022 registered under Sections 399 / 402 of the IPC and Section 25 (1-B) A / 35 of the Arms Act as well as judgment dated 21.02.2023 passed by Sri Ravinder Singh, learned Special Judge ( Children Court), Gaya in connection with Cr. Appeal Juvenile No. 01 / 2023 arising out of Rampur PS Case No. 350 / 2022 whereby and where under the learned Juvenile Justice Board, Gaya has rejected the prayer for bail of the petitioner and the same has been confirmed by the learned Appellate Court and
2/8 further release the petitioner on bail in connection with Rampur PS Case No. 350 / 2022, GR No. 3928 / 2022 , Misc . No. 300 / 2022.
3. Prosecution case in short is that on the basis of confidential information police arrested altogether seven persons including the petitioner and from the possession of the petitioner a country made loaded pistol and two live cartridges have alleged to be recovered and accordingly Police prepared seizure list and registered the F.I.R.
4. Learned counsel for the petitioner submits that the petitioner was declared juvenile by the learned Juvenile Justice Board, Gaya after coming to the conclusion that the petitioner was minor at the time of alleged occurrence and was aged about 16 years 09 months 10 days. Learned counsel further submits that against the order passed by Juvenile Justice Board, Gaya refusing bail, the petitioner preferred an appeal being Cr. Juvenile Appeal No. 01 of 2023 before the learned Special Judge (Children Court ), Gaya who by the impugned judgment and order arrived at erroneous conclusion that social investigation report of the petitioner shows that there is lack of education and discipline. Neighbours also reported that behaviour of CICL is not good. His parents are unable to give
3/8 education to him and could not keep control over his child and occurrence took place due to parental negligence and peer group influence. The CICL is a school drop out. The P.O. in Social Investigation Report opined that CICL needs to be kept out of bad association and needs to be admitted to school for bright future. Considering the tender age of CICL and need for institutional care coupled with objective of keeping him out of from bad association, the CICL was not allowed bail. The conduct of the CICL showed criminal proclivities and criminal psychology and if he is released from protective custody there is likelihood of his going back in the same environment. The petitioner has not yet completed 18 years of age and there is every likelihood that his release at this stage would bring him in association with criminals and anti social elements of locality and also expose him to moral, physical and psychological danger and defeat the ends of justice.
5. Learned counsel for the petitioner relies upon Section 3 (i), (iv), (v) & (xiv) of the Juvenile Justice (Care and Protection of Children) Act, 2015 {hereinafter referred to as "the Act"} which is quoted hereinbelow:- "(i) Principle of presumption of innocence:- Any child shall be presumed to be an innocent of any mala fide or criminal
4/8 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 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 the above mentioned provisions 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 best interest of the child. Learned counsel further submits that the principle of family responsibility and principle of fresh start have also been recognized under the Act.
7. Learned counsel further relies upon Section 12 of the Act, which is quoted as follows:-
5/8 "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 non-bailable 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 ( 2 of 1974) 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
6/8 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 fulfil 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."
8. In reference to Section 12 of the Act, learned counsel submits that bail to a child in conflict with law is a rule and denial is exception.
9. Learned counsel in the aforesaid background submits that the learned court below has failed to consider the scheme of the Act and has committed material irregularity in arriving at the conclusion that release of petitioner would bring him in association with bad elements of society.
10. On the other hand, learned counsel for the State submits that from perusal of Section 12 of the Act it appears that
7/8 bail is a matter of right to the petitioner and denial is exception as such this court may consider to pass appropriate order in accordance with the provisions of the Act for release the petitioner on bail in the best interest of the child.
11. From perusal of the record it appears that petitioner has remained in custody since 12.07.2022.
12. Having regard to the submissions made by the parties and taking into consideration the material on record, I am of the considered opinion that there is possibility of reform in the petitioner inasmuch as the father 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 would fall into association with any known criminals. Further taking into consideration the materials on record as well as the period of incarceration of the petitioner and in the best interest of CICL, this Court is of the considered view that the impugned judgment and order passed by both the courts below are not sustainable in the eyes of law inasmuch as they are not in consonance with the aims and objects of the Act.
13. In the result, I am of the opinion that the learned court below has committed material irregularity in arriving at the conclusion that grant of bail to the petitioner would amount
8/8 to defeating the ends of justice.
14. Accordingly, the judgment and order dated 21.02.2023 and 10/11/2022 respectively passed in Cr. Juvenile Appeal No. 01 of 2022 and Gr. No. 3928 / 2022, Misc. No. 300 / 2022 , Rampur PS No. 350 / 2022 by learned Special Judge (Children Court) Gaya and Juvenile Justice Board, Gaya respectively are hereby set aside.
15. Let the petitioner, above named, be released on bail on furnishing bail bond of Rs. 10,000/- (ten thousand) with two sureties of the like amount each to the satisfaction of learned Juvenile Justice Board, Gaya / court concerned in connection with Rampur PS Case No. 350 / 2022, G.R. No. 3928 / 2022 on the following conditions:- (i) that one of the bailors shall be the father of the petitioner.
(ii) that the father of the petitioner shall file an affidavit before the learned Juvenile Justice Board, Gaya giving specific undertaking that after release of the petitioner on bail, he will take proper care of the petitioner and will not allow him to fall into bad company.
praful/- (Anil Kumar Sinha, J) U