Minor Ajay Pao v. State Of Chhattisgarh

NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRR No.512 of 2016 • Minor Ajay Pao S/o Shri Lalit Pao Aged About 15 Years Through His Father Lalit Pao S/o Shri Panchram Pao, R/o Village Barliya, P.S. Chakardhar Nagar, Tahsil & District Raigarh, Civil & Revene District Raigarh, Chhattisgarh.

---- Petitioner

Versus

• State Of Chhattisgarh Through District Magistrate, Raigarh, District Raigarh, Chhattisgarh.

---- Respondent For Petitioners :

Shri M. K. Sinha with Shri Aditya Khare, Advocates For Respondent/State:

Shri B. Gopa Kumar, Dy.AG S.B. :

Hon'ble Shri Justice Manindra Mohan Shrivastava Order On Board 15/11/2016 This petition has been filed by the applicant assailing correctness and validity of order dated 17/03/2016 passed in appeal, whereby the order of rejection of application for bail under Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short 'the Act of 2000') has been affirmed.

2.

Case of the prosecution is that the applicant committed rape on a minor girl, aged 16 to 17 years, who belongs to Scheduled Tribe category. The applicant appears to be aged 15 years. The applicant moved an application before the Juvenile Justice Board for grant of bail under Section 12 of the Act of 2000. Vide order dated 04-02-2016, the Board rejected the application giving rise to appeal before the appellate authority under Section 101 of the Juvenile

Justice (Care and Protection of Children) Act, 2015. By the impugned order, the Appellate Court has also rejected the appeal and that is how, the juvenile is before this Court.

3.

Learned counsel for the applicant submits that the Courts below have rejected the application for grant of bail relying upon the report of the Probation Officer that in the event of grant of bail, the applicant is likely to be subjected to mental and psychological danger. It is submitted that under the scheme of Act of 2000, grant of bail is rule and rejection is permissible only for the reasons exhaustively enumerated in the provision itself. It is further submitted that the material which has been brought before the Board and the appellate authority is not sufficient to draw an inference that the release would subject the juvenile to any kind of mental or psychological danger, therefore, rejection of bail is illegal. 4.

On the other hand, learned State counsel opposes prayer for grant of bail and submits that in view of the report of Probation Officer, it is clear that the applicant has remained in bad company and he has left the school, it has been found upon enquiry that his release is likely to put the juvenile in conflict with law to mental, physical and psychological danger. 5.

The scope and object of provision regarding grant of bail to a Juvenile as envisaged under Section 12 of the Act of 2000 came up for consideration before a learned Single Judge of this Court in the case of Bharat @ Bhrat & Another vs. State of CG, 2006 (1) CGLJ 72, wherein it was held that the use of word "shall" by the legislative provisions in Section 12 of the Act is of great significance and which raises a presumption that the particular provision is imperative and makes it manifest that ordinarily the Board is under obligation to release the Juvenile on bail with or without surety, but the Juvenile shall not be so released in certain circumstances as latter part of the Section also uses the

word "shall" imposing certain mandatory conditions prohibiting the release of the Juvenile by the Board. It has also been held that ordinarily the bail has to be granted to the Juvenile and would be liable to be rejected only when it appears to the Board that either of the three conditions mentioned in Section 12 of the Act of 2000 are existing. In the case of Akhilesh Kumar vs. State of CG, 2006(1) CGLJ 305, dealing with the case of a Juvenile, this Court while examining the correctness and validity of order rejecting application of the applicant filed under Section 12 of the Act of 2000 on the ground that release would defeat the ends of justice, found that though the Juvenile Justice Board had dismissed the bail application on the ground that release would defeat the ends of justice but how the release would defeat the ends of justice has not been stated. In that view of the matter, this Court came to the conclusion that the orders passed by the Court below are not sustainable in the eye of law. 6.

In the case of Rahul Mishra vs.State of MP, 2001 Cr.L.J. 214, the High Court of M.P. has considered the provisions contained in Section 12 of the Act of 2000 and held that the words notwithstanding anything contained in the Code of Criminal Procedure, 1973, would indicate that the considerations which are germane for granting or refusing bail to persons who are not juvenile delinquent shall not come into play for granting or refusing bail to a Juvenile. It was also held that the words "ends of justice" should be confined to those facts which show that the grant of bail itself is likely to result in injustice. The Juvenile delinquent may appear to be guilty prima facie but he is especially protected by the Act and is favourably considered for grant of bail. From the aforesaid decisions and the law propounded by Their Lordships in various cases, it is clear that ordinarily bail is required to be granted to a Juvenile in view of the provisions contained in Section 12 of the Act of 2000. It is only when the Court finds that the grounds therein are made out that the Court shall reject the

application.

7.

Grant of bail to a juvenile, in conflict with law, is engrafted under Section 12 of the Act of 2000. In the present case, the applicant has been subjected to proceedings and application for grant of bail has been moved under Section 12 of the repealed Act of 2000, as alleged act is said to have been committed when the Act of 2000 was in force. The Act of 2000 was repealed by the Juvenile Justice (Care and Protection of Children) Act, 2015, (for short 'the Act of 2015') Act No.2 of 2016 which received the assent of the President on the 31st of December, 2015 and Act published in the Gazette of India (Extraordinary) Part II Section 1 dated 01/01/2016 pages 1 - 44.

On a comparative reading of provisions contained in Section 12 of the old and new Act, the provisions are pari materia. The provisions and scheme of grant of bail to a Juvenile, in conflict with law which existed in the old Act has been continued in the new Act which is reproduction of provisions contained in Section 12 of the Act of 2000.

8.

The legislature, in its wisdom, has made grant of bail to a juvenile a rule irrespective of nature and gravity of allegations alleged to have been committed by a juvenile. Present is a case of a juvenile who is less than 16 years of age. Therefore, in this case, no case arises for carrying out assessment in terms of provisions contained in Section 15 of the Act of 2015. In respect of the applicant, an enquiry is to be made by the Juvenile Justice Board. Therefore, in such a situation, the Board and the appellate authority were obliged under the law to consider prayer for grant of bail, keeping in view the legislative mandate engrafted under Section 12 of the Act of 2000. 9.

It has been held in catena of decisions that nature and gravity of offence is not a relevant consideration while deciding application for grant of bail filed by

juvenile in conflict with law. Not only that, as the language of Section 12 goes to show, grant of bail is rule and rejection is exception only when one of the grounds enumerated under Section 12 of the Act are made out, which are as under - A.

That release of a juvenile is likely to bring him in association with any known criminals, or B.

That his release is likely to expose him to moral, physical and psychological danger, or C.

That his release would otherwise defeats the ends of justice. The grounds which have been stated under Section 12 of the Act of 2000 are exhaustive and not inclusive so as to say that the application could be rejected for grounds other than those, which have been mentioned in Section 12 of the Act of 2000. When application under Section 12 of the Act of 2000 is filed before the Board for grant of bail, approach has to be different from the approach of the Courts while considering the application for grant of bail under Section 437, 438 and 439 CrPC.

The legislature has purposely gave overriding effect of the provisions of the Act of 2000 by clearly mentioning in Section 12 (1) of the Act of 2000 that "notwithstanding anything contained in Code of Criminal Procedure of 1973 or any other law, for the time being in force, the Juvenile shall 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." By way of proviso, the exceptional grounds which could be made a basis to reject the application have been exhaustively mentioned.

provisions of the Act of 2000 or for that matter, under the provisions of the Act of 2015, the approach should be as to why bail should be refused. 10.

Applying the aforesaid principles laid down in aforesaid decisions passed by this Court and other grounds as also the settled legal position, the report of Probation Officer does not appear to be in favour of the applicant and shows that in the event of release, the applicant is likely to be subjected to physical, mental and psychological danger and therefore, at this stage, it will not be proper to grant bail to the applicant.

11.

In view of above consideration, the revision petition is dismissed. It is submitted that the applicant is kept in the Observation Home since 15-11-2015. The Juvenile Justice Board shall conclude the trial within a period of three months. If it is not done, the applicant would be at liberty to approach this Court again.

Sd/- (Manindra Mohan Shrivastava) Judge Tumane