Mohd. Feroz @ Bhola vs State

Badar Durrez Ahmed, J.—The learned counsel for the petitioner is seeking bail for the petitioner is seeking bail for the petitioner on the ground that he is a juvenile and is entitled to the same u/s 12 of the Juvenile Justice (Care and Protection of Children) Act.2000. He drew my attention to the order passed by the learned Additional Sessions Judge on 27.8.2002 which indicates that the police authorities had placed on record the details of the date of birth of the petitioner and according to these details, the date of birth was said to be 14.2.1984. In the said order, it was recorded that the date of commission of the crime was 6.11.2000 and accordingly, on that date in view of the aforesaid date of birth, the petitioner would have been 16 years and 9 months old. Accordingly, the learned Additional Sessions Judge recorded a finding that the petitioner was a juvenile within the meaning of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as "the 2000 Act") and directed that he be produced before the Juvenile Court for further trial.

Being Aggrieved by this order the mother of the deceased filed an application for recall of the same. By an order dated 4.9.2002, the learned Additional Sessions Judge recorded that the petitioner had been found to be a juvenile by that Court on 27.8.2002 on the basis of a birth certificate issued by the MCD Authorities and produced by the police. It was submitted on behalf of the complainant that the ossification test of the petitioner ought to be done and the order be recalled. However the learned Additional Sessions Judge felt that as the petitioner was found to be a juvenile as per the date of birth recorded in the certificate, there was no necessity for getting an ossification test done. He, accordingly, dismissed the said application for recall.

Being aggrieved by this order as well as the order of 27.8.2002, the said complainant (Smt.Zulekha) preferred a Revision Petition before this Court (Crl.Revision Petition No.775/2002 and Crl.M.978/2002). By a judgment and order dated 10.12.2004, the said revision petition was disposed of. This, Court held that Section 20 of the said Act of 2000 would be applicable and it observed as under:

"The expression "Court" in Section 20 of the new Act means "Court" other than Juvenile Court, otherwise the very purpose of saying that proceedings in respect of a juvenile, pending in any Court on the date the Act came in force, shall be continued in that Court, as if the Act had not been passed would become meaningless. To repeat, on the date when the new Act came into force, all proceedings pending before the Courts will have to proceed, as if the Act has not been passed. The second part of Section 20 makes the provisions of new Act applicable, only after a finding is recorded in respect of the juvenile that he has committed an offence for which he has been charged. In such cases, the trial court is required to forward the delinquent juveniles to the Juvenile Courts, to pass appropriate orders in provisions of the Act".

Accordingly, this Court allowed the Revision and set aside the impugned order and directed the trial Judge to proceed with the trial and to pass an appropriate order in accordance with law. In other words, this Court held that the transfer of the case insofar as the petitioner was concerned to the Juvenile Court was bad and the Court which was hearing the matter initially was the appropriate Court to continue to hear the matter in terms of Section 20 of the Act of 2000.

The judgment dated 10.12.2004, it appears, dealt with the aspect of transfer of the case to the Juvenile Court. Apparently, the point with regard to the petitioner being a juvenile or not was not seriously raised at the time of arguments and, certainly, it was not so discussed in the said judgment. I had called for the file of that case and I found that in the Revision Petition the finding with regard to the petitioner''s being a juvenile has been contested. A1-Though, no such arguments appear to have been made before the Court and no finding in this regard has been given by this Court.

At this juncture, the learned counsel for the State contends that the question of the petitioner being a juvenile is also under a cloud. If this argument is to be accepted then it would result in a conundrum. If the petitioner was a juvenile, only then would the Act of 2000 be applicable and normally only then the provisions of Section 20 would apply. If the petitioner was not to be regarded as a juvenile, then neither the 2000 Act nor Section 20 would apply. This Court disposed of the Revision Petition upon an application of Section 20 of the 2000 Act, implying thereby that the petitioner was a juvenile. Therefore, if it is construed that this Court while disposing of the Revisional Petition had not accepted that the petitioner was a juvenile, it would lead to an anomalous situation where the Court had applied Section 20, when, in fact, it did not apply at all. Therefore, it can be safely assumed that this Court while disposing of the Revisional Petition by judgment dated 10th December, 2004 did not controvert the fact that the petitioner was a juvenile.

The learned counsel for the petitioner as well as the learned counsel for the State relied upon the decision of Constitution Bench of the Supreme Court in the case of Pratap Singh v. State of Jharkhand and Another, 2005(2) CCC 334 (S.C.) : 2005 ACJ 358. Two opinions were delivered by the Supreme Court. One by four Hon''ble Judges and the other by an Hon''ble single Judge (S.B.Sinha, J.) The two questions posed in the opinion by four Hon''ble Judges were as under:-

(a) Whether the date of occurrence will be the reckoning date for determining the age of the alleged offender as juvenile offender or the date when he is produced in the court/competent authority?

(b) Whether the Act of 2000 will be applicable in the case, a proceeding is initiated under 1986 Act and pending when the Act of 2000 was enforced with effect from 1.4.2001 ?

In this case, what is to be seen is, whether the 2000 Act would apply or not. If this Act is to be applicable, two conditions are necessary:

(a) that the pending proceedings should have been initiated under the 1986 Act and should have been pending when the 2000 Act came into force;

and (b) the person should not have completed 18 years of age as on 1.4.2001.

In the present case I find that both conditions are satisfied. In other words the 2000 Act would be applicable. Once it is so held, in terms of the said decision of the Supreme Court, the entire 2000 Act including all of its provisions would become applicable. One such provision is Section 12 which reads as under:-

"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 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 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."

The aforesaid Section makes it mandatory for a person to be released if such person is apparently a juvenile unless of course, there are reasonable ground for believing that the release of such person 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. No such fears have been raised on the part of the prosecution. The learned counsel for the State, however, submitted that the petitioner is accused of directly committing the murder of the deceased by use of a knife and he should be shown no mercy. This is not a question of mercy. The provision is mandatory and stipulates that such a person who is apparently a juvenile "shall" be released on bail notwithstanding anything contained in the Code of Criminal Procedure. 1973 or in any other law for the time being in force subject only to the condition mentioned above in respect of which no fears have been raised by the prosecution.

In this view of the matter, the petitioner is directed to be released on bail on furnishing a personal bond in the sum of Rs.20,000/- with one surety of the like amount to the satisfaction of the concerned Trial Court. The father of the accused petitioner shall file an undertaking by way of an affidavit in the Trial Court indicating that he shall take full care of the petitioner and shall ensure that he does not slip into vagrancy or bad company.