Karamdeep Kaur @ Karamjit Kaur vs State of Punjab

Swatanter Kumar, J.—This is a petition u/s 439 of the Criminal Procedure Code where the petitioner has prayed that he be released on bail in an offence under Sections 304-B/34 of Indian Penal Code. The necessary facts are that Sukhraj Kaur was married in March, 1991, to Devinder Singh son of Iqbal Singh. Devinder Singh is brother of the minor Karamdeep Kaur petitioner herein. In the FIR, allegations are made against all the accused including the petitioner. The llegations relate to treating the deceased with cruelty and demand of dowry etc. It is stated that the deceased was killed and information of her death came to the notice of the complainants on 28.4.95. A case under Sections 304-B/34 of Indian Penal Code in FIR No. 22 dated 28.4.1995 was registered in the Police Station, City, Gurdaspur, against all the accused including the petitioner. The petitioner was taken into custody.

The petitioner filed an application for bail before the Juvenile Justice Bench of the Districts of Amritsar and Gurdaspur, at Gurdaspur, which was rejected by the learned Principal Magistrate at Gurdaspur vide his order dated 5th July, 1995.

The learned Counsel for the petitioner has argued that order of the learned Court below suffers from jurisdictional errors. The learned Judge has failed to take notice and deal with the provision and requirements of Section 18 of the Juvenile Justice Act," 1986 (hereinafter referred to as the Act); Section 18(1) of the Act reads as under :-

"18. Bail and custody of juveniles:- (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 Juvenile Court, 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 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 danger or that his release would defeat the ends of justice."

The language of Section 18 of the Act clearly provides that when a juvenile is arrested, he is entitled to be released on bail except for the circumstances stated as an exception to this rule under Sub-section (1) of Section 18 of the Act. Section 18 itself is an exception to the general rule of the Criminal Procedure Code where an accused may not be released on bail by Courts keeping in view the gravity of the offence, the age and conduct of the accused. Nature and gravity of the offence alone does not seem to be a a lone criteria while adjudicating an application for bail by a juvenile under this Act.

In other words this Act is a special Act governing only the juvenile offenders and Section 18 is further a special provision injuncting the Courts from refusing bail to a juvenile except for the reasons stated in the Section itself. The language of Section 18 in using the mandatory word of ''shall'' and providing non- substantive by using the language ''notwithstanding anything contained in the Code of Criminal Procedure, 1973, or any other law for the time being in force, be released on bail...'' shows the intention of the Legislature to give a juvenile offender of being released on bail, if he is arrested or produced before a Court.

The purpose of this section is certainly to carve out an exception to the general rule and probably to achieve a social object of providing a chance to the juvenile offenders to grow into good citizens and to avoid damage to their future growth and welfare. Within the limits prescribed u/s 18 of the Act, the Courts are duty bound to release the juvenile offenders on bail. The word ''shall'' has to be understood and interpreted in its true meaning and in conjunction with the limitations provided in this section. Clear distinction is made out between a juvenile offender and other offenders. The protection provided to the juvenile offenders under this Act is based on a protectively reformative scheme, which is certainly much larger in its scope and application than other offenders applying for bail under the provisions of Criminal Procedure Act.

The provisions of Section 18(1) of the Act introduce three limitations for grant of bail to juvenile offender, which are as under :-

(i) If it appeared to the Court that there was reasonable ground for believing that the release of juvenile offender is likely to bring him in association of any known criminal; or

(ii) expose him to moral danger; or

(iii) that his release would defeat the ends of justice.

Thus, the Court hearing application for bail of a juvenile offender, must satisfy itself and, if necessary, upon production of relevant material on record that if the juvenile offender is granted bail, it will not violate any of these three conditions, or order of bail, if granted, will not be hit by any of these three conditions. The Court will have jurisdiction to decline bail only in the event it comes to a conclusion to the contrary as aforestated. The Courts will have to specifically record reasons for granting or declining bail to juvenile offenders directly determining its satisfaction or otherwise vis-a-vis the conditions afore stated.

Learned Counsel for the petitioner has relied upon the cases of Navin Panwar @ Neetu v. State 1994(3) R C R 577, and Gudu v. State of U.P. 1991(2) R C R 527. The relevant paras 7 and 8 of Gudu''s case (supra) are reproduced as under :-

"7. u/s 18(1) the only ground for refusal of bail could be if it appeared to the Court that there was reasonable ground for believing that his release is likely to bring him in association of any known criminal or expose him to moral danger, or that his release would defeat the ends of justice. If his case was not covered by above-mentioned circumstances, the Court below has no other option except to grant bail. The use of words be released on bail'' makes it mandatory requiring the Courts to grant bail unless the Court for reasons to be recorded feels it hazardous for the juvenile delinquent or for the ends of justice feels it expedient to refuse bail.

There is no indication from the material placed in this Court that the Police Officer, who took the application in his custody had cared to enquire about his age. If there was a reason to believe that the boy was below sixteen years then the procedure laid down in the Act should have been followed. As already stated above no reason has been expressed for refusing bail by the lower Court. The repetition of crime could be one of the grounds for refusing bail. The applicant was entitled to bail. The application is, therefore, allowed. The applicant be released on his furnishing two adequate sureties and on executing a personal bond in the like amount to the satisfaction of Chief Judicial Magistrate concerned."

In the present case before me there is no dispute to the fact that petitioner was 15 years 9 months old on the date of commission of offence. No material had been placed and not even averred before the Trial Court and as well as before this Court by the respondent raising the plea based on three conditions stated supra and as such the State is not in a position to really oppose the bail of this juvenile offender. A proper plea in this regard has to be raised providing an opportunity to the juvenile offender to meet such a plea. As noticed above the Court has to reply its mind and give finding in its judgment that the limitations stated in Section 18(1) of the Act would be offended if a juvenile offender is enlarged on bail.

The protection in the form of benefit available to a juvenile offender is further clear from the scheme of this Act. u/s 3 it is provided that where an enquiry has been initiated against a juvenile and even if the juvenile during the course of such enquiry ceases to be a juvenile even then notwithstanding anything contained in this Act or any other law for the time being in force, enquiry may be continued and orders made in respect of such person as if such person continues to be a juvenile. u/s 8 of the Act when any Magistrate not \\ empowered to exercise the powers of a Board or Juvenile Court under this Act, is of the opinion that a person brought before him under any of the provisions of this Act, he shall record his such opinion and forward the juvenile and the record of proceedings to the Competent Authority or Court having jurisdiction. Thus, the juvenile offenders are to be treated as a class in itself and in a protected manner by the Courts having been specifically empowered to deal with them.

The object of this Act appears to be to provide a framework for advocacy on behalf of children and for enhancing awareness of the special ends of justice on the part of the decision makers. The justice system as available for adults was considered not suitable for being applied to juveniles and greater attention was certainly required to be given to children who may be found in situations of social maladjustment, delinquency or neglect. The Act, therefore, provides for care, protection, treatment, development and rehabilitation of neglected or delinquent juveniles. The object of this Act has to be kept in mind. The Supreme Court in case of A. Thangal Kunju Musaliar Vs. M. Venkitachalam Potti and Another, said that "the preamble is a good means of finding out the meaning of the statute and as it were a key to the understanding of it."

Thus, the Court has to apply its mind keeping in view the object of this Act and to specifically deal with the exception for granting bail to a juvenile as provided in Section 18 of the Act. If the record or the order does not show application of mind, the order would suffer from apparent errors.

In the present case, the learned Principal Magistrate acting as Juvenile Court had fallen into such error. The order does not even refer to Section 18 of the Act and thus is liable to be set aside. The safeguard or the protection which has been provided by the legislation constitutes a right and it cannot be taken away by a routine order.

It is proper application of mind to consider the facts and circumstances of each case. Obviously there can never be any hard and fast rule covering the various cases or offences committed by a juvenile under the Act, but certainly the minimum requirement stated in Section 18 of the Act must be satisfied.

In view of the discussion above, the order of the learned Principal Magistrate acting as Juvenile Court is hereby set-aside. The petitioner be released on bail on her furnishing a personal bond in the sum of Rs. 6,000/- with one surety in the like amount to the satisfaction of the Principal Magistrate, Juvenile Court at Gurdaspur. The bail is subject to the condition that the petitioner shall not leave the territorial jurisdiction of this Court without prior permission of that Court.

The petition is disposed of accordingly.