Lalchand v. State Of Chhattisgarh

NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRR No. 1003 of 2016 • Lalchand S/o Rudra Prasad Aged About 16 Years Caste Panika, R/o Village Pondi (Maani) Police Station, Tehsil & District- Surajpur, Chhattisgarh, Through Natural Guardian, Grandfather Ghuran, S/o Durjan, Aged About 65 Years, Caste Panika, R/o Village Pondi (Maani) Police Station, Tehsil & District Surajpur, Chhattisgarh. ---- Applicant / Juvenile

Versus

• State Of Chhattisgarh Through Station House Officer, Police Station Surajpur, District Surajpur, Chhattisgarh.

---- Respondent ------------------------------------------------------------------------------------------------------ For Applicant :

Mr. Sushil Dubey, Advocate For State :

Mr. D.R. Minj, Dy. Government Advocate ------------------------------------------------------------------------------------------------------ Hon'ble Shri Justice Manindra Mohan Shrivastava Order On Board 15/11/2016 1.

This revision petition has been filed by the applicant challenging the order dated 29.08.2016, by which applicant's appeal has been dismissed by the Appellate Authority affirming the order of rejection of applicant under Section 12 of the the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short, 'the Act, 2000'). 2.

The allegation is that the applicant and other co-accused persons looted coal from the truck alongwith truck. The applicant appears to be 15 and 1/2 years of age.

3.

Learned counsel for the applicant submits that in the present case no specific material, warranting any inference for rejection of application for grant of bail, has been filed by the prosecution or by the Probation Officer. He submits that the report of the Probation Officer only shows applicant having occasionally found intoxicated. It is further submitted that as per the report of the probation officer, there is nothing to show that release will bring the juvenile / applicant in association with any known criminals or is likely to expose him to moral, physical and psychological danger. Further submission is that no material was considered nor was available before the authorities to form an opinion

that the release would otherwise defeat the ends of justice. Therefore, rejection of the application and appeal is illegal. 4.

On the other hand, learned State counsel opposes prayer for grant of bail and submits that the applicant looted coal and the truck was driven away and has been found in the possession of the applicant. The probation officer in his report found that the applicant occasionally found intoxicated, therefore, his release is likely to put him in mental, physical and psychological danger. Learned State counsel also submits that while rejecting appeal, the appellate authority has also taken into consideration that it will be more in the interest of justice that he is kept in Observation Home and not outside, particularly when there is no one to properly look after him.

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.

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.

considering the applications for grant of bail under Section 437, 438 and 439 CrPC is as to why the applicant should be granted bail whereas while considering the application for grant of bail made on behalf of a juvenile, in conflict with law under the 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.

The Juvenile Justice Board and the appellate authority are required to look more into aspects which may be relevant with reference to three grounds namely likelihood of association with known criminals, likelihood of physical, mental and psychological danger and likelihood of defeating the ends of justice, rather than searching into merits of the case or the nature and gravity of allegations. The report of a probation officer assumes great importance because it contains social investigation report of the child in conflict with law.

The Special Juvenile Police Unit and the police station where the offence has been registered, may also place before the Juvenile Justice Board, any material relevant for deciding whether any ground is made out to reject the application which are mentioned in the provisions contained in Section 12 of the Act of 2000. Once, those grounds are not made out, the only consequence is release of the juvenile. Rejection of application for grant of bail by making a detailed enquiry into the nature and gravity of allegations would be completely contrary to the statutory mandate of Section 12 of the Act of 2000.

Under the scheme of the Act of 2015, an assessment is required to be carried out in those cases, where the Juvenile, in conflict with law, is more than 16 years of age and is alleged to have committed an act which is categorized as heinous offence. However, in the present case, as the juvenile is less than 16 years, that situation does not arise for consideration.

11.

Aforesaid report is examined, the applicant has been stated to be found occasionally intoxicated. It is not indicated in the report that the applicant used to take any kind of drug and, there is nothing to show that release will bring the juvenile / applicant in association with any known criminals or is likely to expose him to moral, physical and psychological danger. Except this, there is nothing material placed on

record warranting an inference to be drawn, so as to reject the application.

12.

Therefore, taking into consideration, the totality of the circumstances of the present case and that the grounds for rejection of his application under Section 12 of the Act, 2000 are not made out, the revision petition is allowed. The applicant shall be released on bail forthwith on furnishing a personal bond in the sum of Rs.10,000/- by the parents or guardians of the applicant, as the case may be, to the satisfaction of the Juvenile Justice Board for his appearance before the Board, as and when directed during enquiry. Sd/- (Manindra Mohan Shrivastava) Judge Chandra