Amit Kumar v. The State Of Bihar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL REVISION No.363 of 2020 Arising Out of PS. Case No.-503 Year-2018 Thana- MOTIHARI MUFASIL District- East Champaran ====================================================== AMIT KUMAR S/O- Awadhesh Sharma through Awadhesh Sharma in the capacity of father Natural Guardian of Minor who is and has been declared Minor by the Juvenile Justice Board S/O- Awadhesh Sharma, Resident of Village - Badhai Tola, Chhatauni, P.S. - Chhatauni, District - East Champaran. ... ... Petitioner/s
Versus
The State of Bihar ... ... Respondent/s ====================================================== Appearance :
For the Petitioner/s :
Mr. Nafisuzzoha, Adv.
For the Respondent/s :
Ms. Sucheta Yadav, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE ANIL KUMAR SINHA ORAL ORDER 22-06-2021 Heard Mr. Nafisuzzoha, learned counsel for revisionist/petitioner and Ms. Sucheta Yadav, learned APP for the State through video conferencing.
2. The present Cr. Revision application has been filed against the judgment and order dated 20.12.2019 passed in Cr. Appeal (Juvenile) No. 36/2019 by the learned 1st Additional Sessions Judge, East Champaran, Motihari as well as order dated 24.05.2019 passed by Juvenile Justice Board, East Champaran, Motihari in connection with Motihari Mufassil PS Case No. 503/2018 under Section 302/34 of the IPC and under Sections 3 (2) (V) (a) of the SC/ST Act whereby and whereunder both the learned court below have refused to release
2/7 the revisionist/petitioner on bail.
3. The allegation, as per First Informant Report, is that one Lalita Devi and the petitioner called younger brother of the informant, namely, Sandeep Kumar and surrounded him, inflicted knife blows on his private parts due to which, brother of the informant died in the hospital during course of treatment.
4. Learned counsel for the petitioner submits that petitioner was declared juvenile vide order passed by Juvenile Justice Board, East Champaran, Motihari on 22.04.2019 after coming to the conclusion that the petitioner was minor at the time of alleged occurrence and was aged about 16 years, 06 months and 10 day. Learned counsel next submits that against order passed by Juvenile Justice Board, East Champaran, Motihari refusing the bail application, petitioner preferred an appeal bearing Cr. Appeal (Juvenile) No. 36/2019 before the learned court of 1st Additional Sessions Judge, East Champara, Motihari who by impugned judgment arrived at an erroneous conclusion that release of the juvenile (petitioner) may expose him to moral, physical and psychological danger and confirmed the order of Juvenile Justice Board, East Champaran, Motihari. Learned counsel next submits that petitioner has got no criminal antecedents.
3/7
5. Learned counsel has placed reliance upon Sections 3 (i) (iv) (v) and (xiv) of Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as 'the Act') which are quoted hereinbelow:- (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 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
4/7 principle of fresh start have also been recognized in the Act.
6. Learned counsel further relies upon Section 12 of the Act which is as follows:-
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 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 maybe, 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
5/7 within seven days of the bail order, such child shall be produced before the Board for modification of the conditions of bail.
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 an exception.
8. Learned counsel for the petitioner, in the aforesaid backdrop, 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 the petitioner, if released on bail, will expose him to moral, physical and psychological danger, though there was no material before the learned lower court to arrive at this conclusion.
9. Learned counsel for the petitioner next submits that the father of the petitioner is ready to submit an undertaking by way of an affidavit stating therein that he will take proper care of his child/ petitioner and protect him from falling into a bad company.
10. On the other hand, learned counsel for the State submits that from perusal of Section 12 of the Act, it appears that bail is a matter of right to the petitioner and denial is an exception and in view of the fact that father of the petitioner is ready to give an undertaking to reform his child, i.e., the
6/7 petitioner, this Court may consider to pass an appropriate order in accordance with the scheme of the Act.
11. Having regard to the submissions made by the parties and taking into consideration the material on record and the fact that there was no material before the learned lower court to come to the conclusion that the release of the petitioner would expose him to moral, physical or psychological danger and it merely confirmed the order passed by the J.J. Board, East Champaran, Motihari, therefore, in my considered view, the impugned judgment and order passed by both the court below are not sustainable in the eyes of law.
12. Accordingly, judgment and order dated 20.12.2019 passed in Cr. Appeal (Juvenile) No. 36/2019 by the learned 1st Additional Sessions Judge, East Champaran, Motihari as well as order dated 24.05.2019 passed by Juvenile Justice Board, East Champaran, Motihari are hereby, set aside and the revisionist/petitioner, AMIT KUMAR is directed to 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, East Champaran, Motihari in connection with Motihari Mufassil PS Case No. 503/2018, subject to the condition that father of the petitioner
7/7 shall file an undertaking by way of an affidavit before the learned court below stating therein that he will take proper care of his child/petitioner and will not let him fall into a bad company.
13. With the aforesaid observation and direction, the instant application is allowed.
14. Needless to say that at the time of furnishing bail bonds all the parties shall follow the covid protocol of social/physical distancing and sporting masks. (Anil Kumar Sinha, J) perwez U T