Durga vs State Of Rajasthan

Heard on the application for suspension of sentences.

Perused the material available on record.

On a perusal of the material available on record, it is apparent that the appellant was a 'Child in Conflict with Law' on the date of incident. The Principal Magistrate, Juvenile Justice Board, Pratapgarh passed the order dated 05.09.2016 whereby the appellant herein was considered fit to be tried as an adult after purportedly holding an enquiry under Section 15 of the Juvenile Justice (Care and Protection of Children), Act, 2015 by concluding that the appellant was having mental and physical capacity to commit the offence and capability to understand the consequences thereof. Thereafter the matter was sent to the Court of Sessions Judge, Pratapgarh where the trial was conducted against the accused appellant as an adult. Upon conclusion of trial, the Sessions Court convicted the accused appellant for offence under Section 302 IPC and sentenced her to life imprisonment.

Prima facie, we are of the firm opinion that the enquiry made by the Principal Magistrate and declaration of the appellant fit to be tried as an adult with reference to Section 15 of the Act of 2015 is absolutely perfunctory and the decision to send the child for trial as an adult was tainted. We shall assign detailed reasons for this finding while deciding the appeal. Be that as it may, as per proviso to Section 10 of the Act of 2015, it is manifest that no child in conflict with law shall be placed in a police lockup or lodged in a jail. The appellant herein after being sent to the Sessions Court for trial was lodged in the jail. By order dated 19.08.2017, the learned Sessions Judge directed that the child had attained majority and thus, she was sent to District Jail, Pratapgarh. Manifestly, the direction so given does not stand to scrutiny in light of the mandatory provisions of Sections 10, 18 & 20 of the Act of 2015. As per Section 20 of the Act of 2015, a child who has completed 20 years of age but has yet to complete the term of stay, has to be kept at a place of safety. Thus ex facie, the direction given by the learned Sessions Judge, Pratapgarh to send the child to the District Jail, Pratapgarh appears to be illegal. In the light of peculiar facts of the case and considering the report of the Board constituted to conduct the physical and mental assessment of the child wherein it has been mentioned that the the incident took place while the petitioner and her husband (deceased) were fighting physically and verbally, we are satisfied that the appellant who was a child as on the date of incident deserves a sympathetic and lenient consideration on the aspect of bail. Thus, we accept the instant application for suspension of sentences.

Accordingly, the instant applications for suspension of sentences filed under Section 389 Cr.P.C. is allowed and it is ordered that the sentences passed by learned District & Sessions Judge, Pratapgarh, vide judgment dated 12.12.2018 in Sessions Case No.115/2016 against the appellant-applicant Smt. Durga W/o Shri Bherulal shall remain suspended till final disposal of the aforesaid appeal and she shall be released on bail, provided she executes personal bond in the sum of Rs.50,000/- with two sureties of Rs.25,000/- each to the satisfaction of the learned trial Judge for her appearance in this court on 11.03.2019 and whenever ordered to do so till the disposal of the appeal on the conditions indicated below:-

That he/she/they will appear before the trial Court in the month of January of every year till the appeal is decided.

That if the applicant(s) changes the place of residence, he/she/they will give in writing his/her/their changed address to the trial Court as well as to the counsel in the High Court.

Similarly, if the sureties change their address(s), they will give in writing their changed address to the trial Court.

The learned trial Court shall keep the record of attendance of the accused-applicant(s) in a separate file. Such file be registered as Criminal Misc. Case related to original case in which the accused-applicant(s) was/were tried and convicted. A copy of this order shall also be placed in that file for ready reference. Criminal Misc. file shall not be taken into account for statistical purpose relating to pendency and disposal of cases in the trial court. In case the said accused applicant(s) does not appear before the trial court, the learned trial Judge shall report the matter to the High Court for cancellation of bail.