Xxxx Juvenile In Conflict With Law v. The State Of Bihar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL REVISION No.374 of 2024 Arising Out of PS. Case No.-341 Year-2023 Thana- GOH District- Aurangabad ====================================================== XXXX Juvenile in Conflict with Law s/o- Dilip Singh @ Dilip Ram Under Guardianship Dilip Singh @ Dilip Ram who is Natural Guardian of Juvenile, Resident of Village- Pema PS- Goh District- Aurangabad ... ... Petitioner/s
Versus
The State of Bihar ... ... Respondent/s ====================================================== Appearance :
For the Petitioner/s :
Mr. Santosh Kumar Pandey, Adv.
For the Respondent/s :
Mr. Choubey Jawahar, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE RUDRA PRAKASH MISHRA ORAL ORDER 12-07-2024 Heard learned counsel for the petitioner/revisionist and learned APP representing the State.
2. The present revision application has been filed by the petitioner/revisionist "XXXX" Child in Conflict with Law (hereinafter to be referred to as "the CCL") against the order dated 07.03.2024 passed in Cr. App. No. 13 of 2024 by the Children Court cum 1st Additional District and Sessions Judge, Aurangabad affirming the order dated 09.02.2024 passed in J.J.B. Case No. 1256 of 2023 arising out of Goh P.S. Case No. 341 of 2023 registered for offence under Section 392 of the
2/11 Indian Penal Code by learned Principal Magistrate, Juvenile Justice Board, Aurangabad rejecting the bail of the petitioner.
3. The prosecution case, in short, is that on 06.11.2023 at about 03:41 PM, the Informant Rekha Kumari was going home after withdrawing Rs. 30,000/- from State Bank of India, Goh. When she reached near Munna Hotel, two persons riding a Pulsar motorcycle, came from behind, pushed her and snatched the bag from her hand containing medicines, lunch box and cash amounting Rs. 34,000/- and fled away.
4. Learned counsel for the petitioner/revisionist submits that the petitioner is innocent and has no committed any offence as alleged in the F.I.R. and has falsely been implicated in the present case merely on the basis of suspicion. The petitioner is not named in the F.I.R. The petitioner was declared juvenile by the Juvenile Justice Board, Aurangabad (for brevity "J.J.B., Aurangabad") and it has been held that the petitioner was 17 years 4 months 28 days on the date of occurrence. The petitioner filed an application for bail before the J.J.B., Aurangabad which was rejected vide order dated 09.02.2024. Learned counsel for the petitioner/revisionist further submits that the petitioner was not present at the place of occurrence and nothing incriminating has been recovered from his
3/11 physical/conscious possession. The petitioner has been remanded in this case from Goh P.S. Case No. 345 of 2023. The petitioner has no concern with the alleged motorcycle. He further submits that the adult co-accused Raushan Kumar has already been granted bail by this Court vide order dated 02.04.2024 passed in Cr. Misc. No. 22601 of 2024. There is no compliance of Section 100 of the Cr.P.C. in this case. The petitioner has been sent to observation home on 06.12.2023 and since then, he is there.
5. He further contends that the father of the revisionist who is the guardian of the revisionist undertakes that he will take care of the conduct and behaviour of the revisionist and further added that the revisionist will observe good conduct and behaviour in future. He thus submits that the revisionist may be released on bail. He further submits that the present case does not come under the purview of the provisions to Section 12 of the J.J.Act and so far as Social Investigation Report (S.I.R.) is concerned, he has only one criminal antecedent.
6. Learned counsel for the petitioner further submits that parents of the petitioner is ready to keep the petitioner in a social conducive atmosphere and will not allow his son to be in company of unlawful element of the society. Learned counsel
4/11 for the petitioner further submits that the natural guardian/father of the revisionist has given an undertaking that upon release on bail juvenile 'X' will not be permitted to go into contact or association with any known criminal or allowed to be exposed to any moral, physical, or psychological danger and further that the father will ensure that the juvenile will not repeat the offence. Learned counsel for the petitioner further points out that the learned court below, without considering the general principles laid down under Section 3 as well as the mandatory provisions of Section 12 of the J.J.Act, rejected the bail of the petitioner (CCL).
7. Learned counsel for the petitioner has filed supplementary affidavit annexing an undertaking given on Oath by the father of the petitioner/revisionist (Annexure-R/5), Paragraph nos. 2 to 4 whereof reads as follows:- "2. That I undertake to keep my son in a social milieu. Conducive to development of a law abiding citizen and further undertake to keep my son away from anti social aliments of societies.
3. That I also undertake to look after day to day activities of my son and also provide all possible enmity, so that my son will get proper education and will be in society of a person having good moral character and law abiding citizen.
4. That I further undertake to keep my son with love affection and also teach him to
5/11 respect all the elders and having love for younger and not indulged in any unlawful activities and will take all possible steps to be groomed as good citizen of state/Nation."
8. Learned counsel for the State has vehemently opposed the prayer for bail of the petitioner/revisionist.
9. Section 3 of the J.J. Act of 2015 enumerates the general principles to be followed in administration of the Act. It regulates the conduct and behaviour of all persons functioning under the Act. It states that the Central Government, the State Governments, the Board and other agencies, as the case may be, while implementing the provisions of the Act shall be guided by the fundamental principles enumerated in clauses (i) to (xvi). Section 3 reads as follows:- "3. General principles to be followed in administration of Act.
The Central Government, the State Governments, the Board, and other agencies, as the case may be, while implementing the provisions of this Act shall be guided by the following fundamental principles, namely:- (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. (ii) Principle of dignity and worth: All human beings shall be treated with equal dignity and rights.
6/11 shall be taken into consideration with due regard to the age and maturity of the child.
(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.
(vi) Principle of safety: All measures shall be taken to ensure that the child is safe and is not subjected to any harm, abuse or maltreatment while in contact with the care and protection system, and thereafter.
(vii) Positive measures: All resources are to be mobilised including those of family and community, for promoting the well-being, facilitating development of identity and providing an inclusive and enabling environment, to reduce vulnerabilities of children and the need for intervention under this Act.
(viii) Principle of non-stigmatising semantics: Adversarial or accusatory words are not to be used in the processes pertaining to a child.
(ix) Principle of non-waiver of rights: No waiver of any of the right of the child is permissible or valid, whether sought by the child or person acting on behalf of the child, or a Board or a Committee and any non-exercise of a fundamental right shall not amount to waiver. (x) Principle of equality and non-discrimination: There shall be no discrimination against a child on any grounds including sex, caste, ethnicity, place of birth, disability and equality of access, opportunity and
7/11 treatment shall be provided to every child.
(xi) Principle of right to privacy and confidentiality: Every child shall have a right to protection of his privacy and confidentiality, by all means and throughout the judicial process.
(xii) Principle of institutionalisation as a measure of last resort: A child shall be placed in institutional care as a step of last resort after making a reasonable inquiry.
(xiii) Principle of repatriation and restoration: Every child in the juvenile justice system shall have the right to be re-united with his family at the earliest and to be restored to the same socio-economic and cultural status that he was in, before coming under the purview of this Act, unless such restoration and repatriation is not in his best interest.
(xiv) Principle of fresh start: All past records of any child under the Juvenile Justice system should be erased except in special circumstances..
(xv) Principle of diversion: Measures for dealing with children in conflict with law without resorting to judicial proceedings shall be promoted unless it is in the best interest of the child or the society as a whole. (xvi) Principles of natural justice: Basic procedural standards of fairness shall be adhered to, including the right to a fair hearing, rule against bias and the right to review, by all persons or bodies, acting in a judicial capacity under this Act."
10. Section 12 of the Juvenile Justice (Care & Protection of Children) Act, 2015 reads as follows:- "12. Bail to a person who is apparently a child
8/11 alleged to be in conflict with law. (1) When any person, who is apparently a child and is alleged to have committed a abailable 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 persons 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 sub-section (1) by the officer-in-charge of the police station, such officer shall cause the person to be kept only in an observation home 1[or a place of safety, as the case may be] 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
9/11 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."
11. This Court is of the view that the provision of Section 12 of the said Act relating to bail shall be taken into consideration, notwithstanding anything contained in the Code of Criminal Procedure, in the touchstone of the principle of presumption of innocence of the child. Thus, granting bail to a CCL is the rule and refusal is an exception.
12. This Court finds that in the case of Lalu Kumar @ Lal Babu @ Lallu vs The State of Bihar reported in 2019 (4) PLJR 833, the Court has held that the gravity and nature of the offence are immaterial for consideration of bail under the Act of 2015 and general principles as stated under Section 3 of the Act of 2015 have to be followed.
13. Having heard the submissions made by the learned counsel for the parties and having perused the materials available on record as also considering the undertaking filed by the natural father/guardian of the petitioner/revisionist coupled with the fact that the adult co-accused having been granted bail by this Court coupled with the fact that the present case is not covered by the proviso of Section 12 of the J.J. Act, it appears that both the orders dated 07.03.2024 and 09.02.2024 are not
10/11 justified in law.
14. Accordingly, the order dated 07.03.2024 passed in Cr. App. No. 13 of 2024 by the Children Court cum 1st Additional District and Sessions Judge, Aurangabad and the order dated 09.02.2024 passed in J.J.B. Case No. 1256 of 2023 arising out of Goh P.S. Case No. 341 of 2023 are here by set aside.
15. In the result, the present revision application stands allowed.
16. Let the petitioner/revisionist, abovenamed, be released on bail on furnishing bail bonds of Rs.10,000/- (Ten thousand) with two sureties of the like amount each to the satisfaction of Court below/concerned Court in connection with Goh P.S. Case No. 341 of 2023, subject to following conditions; (i) The first bailor must be the natural guardian/father of the petitioner/revisionist.
(ii) The second bailor would be the recognized member of the Panchayat or the reputed person of the village. (iii) The Child-in-Conflict with Law (CCL) shall remain present before the appellate court as well as the J.J. Board as and when required.
(iv) The Probation Officer of the district shall submit
11/11 Social Investigation Report (S.I.R.) from time to time before the concerned court below.
(Rudra Prakash Mishra, J) rishi/- U T