Bharat Kumar Vishwakarma vs State of U.P.

Shri Kant Tripathi, J.—Heard Mr. P.C. Srivastava for the revisionist and the learned AGA for the respondent and perused the record.

This is a revision against the Judgment and order dated 29.7.2010 passed by the Sessions Judge, Gorakhpur in Criminal (Juvenile) Appeal No. 134 of 2010 (Bharat Kumar Vishwakarma v. State of U.P.), whereby the learned Sessions Judge dismissed the revisionist''s appeal against the order dated 17.7.2010 passed by the Juvenile Justice Board, Gorakhpur in the case crime No. 527/2010, under Sections 363, 366, 376, 506 and 120-B IPC, Police Station Chauri Chaura, District Gorakhpur.

It appears that the Juvenile Justice Board, vide its order dated 6.7.2010 declared the revisionist as a juvenile. Thereafter, the revisionist moved an application for bail but the same was rejected by the Juvenile Justice Board, vide its order dated 17.7.2010. The aforesaid appeal filed by the revisionist was also dismissed by the learned Sessions Judge, Gorakhpur.

Mr. P.C. Srivastava, the learned Counsel for the revisionist submitted that the prosecutrix was major on the date of occurrence and she was a consenting party and remained in the company of the revisionist for about one week. It was next submitted that the bail prayer of the revisionist was liable to be allowed.

In view of the fact that the revisionist is a juvenile, his bail prayer is liable to be considered in accordance with Section 12 of the Juvenile Justice (Care & Protection of children) Act 2000 (in short ''the Juvenile Act), which provides:

Section 12: Bail of juvenile.-(1) When any person accused of a bailable or non-bailable offence, and apparently a juvenile, is arrested or detained or appears or is 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 institution or fit person but he shall not be so released if there appear reasonable grounds for believing that the release is likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice.

(2) When such person having been arrested is not released on bail under Sub-section (1) by the officer incharge of the police station, such officer shall cause him to be kept only in an observation home in the prescribed manner until he can be brought before a Board.

(3) When such person is not released on bail under Sub-section (1) by the Board it shall, instead of committing him to prison, make an order sending him to an observation home or a place of safety for such period during the pendency of the inquiry regarding him as may be specified in the order.

A perusal of Section 12 of the Juvenile Act reveals that a juvenile is entitled to bail notwithstanding, gravity of the crime. His bail can be refused only when there are reasonable grounds for believing that his release is likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice. It is also manifest that the said Section 12 the Juvenile Act overrides the Code of Criminal Procedure, 1973 (in short ''the Code'') and other laws for the time being in force and, therefore, in the event of any inconsistency, Section 12 of the Juvenile Act will prevail.

In the case of Vijendra Kumar Mali v. State of U.P. 2003 (1) JIC 103 this Court has held:

....

This Court in a number of judgments has categorically held that bail to the juvenile can only be refused if anyone of the grounds existed. So far as the ground of gravity is concerned, it is not covered under the above provisions of the Act. If the bail application of the juvenile was to be considered under the provisions of the Code of Criminal Procedure, there would have been absolutely no necessity for the enactment of the aforesaid Act. The language of Section 12 of the Act itself lays down that notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law for the time being in force, the juvenile accused shall be released. Not only this, the Parliament re-considered the entire matter and repealed the old Act of 1986 by introduced the new Act No. 56 of 2000, raising the age from 16 to 18 years. This has been done keeping in view the welfare of the child so that even after committing an offence a child may not become a hardened criminal but he may reform himself.

And in Akash Rai v. State of U.P.LXV (2009) ACC 522 this Court again held as under:

....

As per provision of Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2000 except on the ground mentioned therein bail is mandatory to the Juvenile. It appears from the Judgment and order passed by the Session Judge, Mau that the revisionist is Class XIIth Student and according to the report of the District Probation Officer, Ballia he has committed Crime due to company of bad elements. The District Probation Officer''s report is based on no evidence and it appears that simply to make a ground that the revisionist may not be released on bail the report has been submitted. There is nothing on record that after release the revisionist would come in association with any known Criminal or exposed him to moral, Physical or Psychological danger or that of his release would defeat ends of justice. Father of revisionist has given an undertaking about the revisionist''s welfare and education.

To combat the aforesaid citations, the learned Counsel for the revisionist has cited the cases of Deepak Kumar v. State of U.P. 2003 (1) UPCR 616, Vikky alias Vikram Singh (Minor) v. State of U.P. and Ors. 2003 (1) UPCR 526, Rajendra v. State of U.P. 2003(1) UPCR 149, Shiv Kumar alias Sadhu v. State of U.P. LXVIII (2010) ACC 616, Prem Chand @ Monu v. State of U.P. and Anr. 2008 (2) A. C.J. 447, Sanjay Chaurasia v. State of U.P. LXV (2006) ACC 480, Sanjay Kumar v. State of U.P. 2003 (1) UPCR 220 and Rajveer v. State of U.P. 2002 (II) UPCR 617.

There is no evidence to show that if the revisionist is released on bail, he would come in association with any known or unknown criminal or is likely to be exposed to moral, physical or psychological danger or that his release would defeat the ends of justice. Therefore, none of the exceptions mentioned in Section 12 of the Juvenile Act is made out in this case.

Keeping in view the facts and circumstances of the case, I am of the view that bail prayer of the revisionist can not be refused and therefore it would be just and expedient to enlarge the revisionist Bharat Kumar Vishwakarma on bail.

The revision is allowed. The impugned order dated 29.7.2010 passed by the Sessions Judge, Gorakhpur as well as the order dated 17.7.2010 passed by the Juvenile Justice Board, Gorakhpur in the aforesaid criminal case are hereby quashed.

Let the revisionist Bharat Kumar Vishwakarma be released on bail in the aforesaid case on his furnishing a personal bond to be executed by his guardian and two sureties each in the like amount to the satisfaction of the Juvenile Justice Board, Gorakhpur.