Radheshyam Yadav v. The State Of Bihar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL REVISION No.348 of 2023 Arising Out of PS. Case No.-127 Year-2022 Thana- MARAUNA District- Supaul ====================================================== RADHESHYAM YADAV Son of Sunil Yadav Resident of Village - Parikach, P.S.- Marauna, District - Supaul (Under guardianship of Father namely Sunil Yadav aged about 48 years, Son of Jailal Yadav, Resident of Village - Parikoch, P.S.- Marauna, Distt.- Supaul) ... ... Petitioner/s
Versus
The State of Bihar ... ... Respondent/s ====================================================== Appearance :
For the Petitioner/s :
Mr. Hriday Narayan Harshit, Advocate For the Respondent/s :
Mr.Sadanand Paswan, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE ANIL KUMAR SINHA ORAL ORDER 03-08-2023 Heard learned Counsel for the petitioner and learned Additional Public Prosecutor appearing for the State.
2. This Criminal Revision has been filed against the judgment and order dated 7.1.2023 passed by learned Incharge Additional Distt. & Sessions Judge-I-cum-Special Judge (Juvenile Court), Supaul, in Criminal Appeal No. 33 of 2022 arising out of Marauna P.S. Case No. 127 of 2022. By impugned order, the learned Additional Distt. & Sessions Judge-I-cumSpecial Judge (Juvenile Court), Supaul, has affirmed the order dated 19.10.2022 passed by the learned Principal Magistrate, Juvenile Justice Board, Supaul, in POCSO Case No. 60 of 2022, J.J.B. No. 190 of 2022 arising out of Marauna P.S. Case No. 127 of 2022 registered for the offence punishable under Sections
2/8 341, 323, 366-A, 376, 34 of the Indian Penal Code, Section 4/8 of POCSO Act, and Section 3(i)(r)(s)(w-i)(w-ii)/3(2) (va) of SC/ST Act.
3. The prosecution case in nutshell, is that on 25.8.2022 at 11:00 p.m. night when the informant along with Kajal Kumari and Amit Kumar was going to see fair, it is alleged that the petitioner along with other named co-accused persons surrounded and assaulted them. The further allegation against the petitioner is that he and co-accused Santosh Kumar forcibly took the informant and Kajal Kumari on his Motorlcycle to Parikachh Middle School and behind the School, forcibly made relationship with the informant.
4. Learned Counsel for the petitioner submits that the petitioner was declared juvenile by order dated 30.09.2022 passed by the learned Juvenile Justice Board, Supaul, after coming to the conclusion that the petitioner was minor at the time of alleged occurrence. He next submits that by the impugned order, the learned Incharge Additional District & Sessions Judge-I-cum-Spl. Judge (Juvenile Court), Supaul, has rejected the prayer of the petitioner for bail on erroneous conclusion that petitioner may repeat the same offence and it may expose the petitioner to moral, physical and psychological
3/8 danger. He next submits that learned Incharge Additional District & Sessions Judge-I-cum-Special Judge, Supaul, did not consider the social investigation report in correct legal perspective and the petitioner is in custody since 30.9.2022.
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 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"
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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. Learned Counsel further relied upon Section 12 of the Act, which is quoted 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 (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
5/8 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 - incharge 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 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 fulfill 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."
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8. 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.
9. Learned Counsel, in the aforesaid background, submits that the learned Incharge Additional Distt. & Sessions Judge-I-cum-Special Judge (Juvenile Court), Supaul, has failed to consider the scheme of the Act and has committed irregularity in arriving at the conclusion that the petitioner may repeat the same offence, if released on bail and it would defeat the ends of justice.
10. 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.
11. 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.
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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 and the mother of the petitioner is ready to take proper care of the petitioner after his release on bail and there is no likelihood that the petitioner will commit the same offence. As such, the conclusion arrived at by learned Incharge Additional Distt. & Sessions Judge-I-cum-Special Judge (Juvenile Court), Supaul, that the petitioner may fall into bad company, is not sustainable in the facts and circumstances of the case.
13. Accordingly, this Criminal Revision is allowed and the order dated 19.10.2022 and 7.1.2023 respectively passed by learned Incharge Additional Distt & Sessions JudgeI-cum-Special Judge (Juvenile Court), Supaul, in Criminal Appeal No. 33 of 2022, JJB No. 190 of 2022 arising out of Marauna P.S. Case No. 127 of 2022 and learned Principal Magistrate, Juvenile Justice Board, Supaul, are hereby set aside.
14. 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
8/8 learned Principal Magistrate, Juvenile Justice Board, Supaul, in connection with J.J.B. No. 190 of 2022, POCSO Case No. 60 of 2022 arising out of Marauna P.S. Case No. 127 of 2022, 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, Rohtas at Sasaram, 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) S.Ali/- U