Mohmad Umar Ansari vs State of Haryana

Rameshwar Singh Malik, J.

CRM No.19446 of 2012

The applicant seeks condonation of delay of 132 days in filing the present revision petition. Notice of this application was issued.

Learned counsel for the applicant submits that the applicant is a juvenile and since he was behind the bars, his family members could not pursue the matter at the relevant point of time. He further submits that the applicant was not going to gain anything in delaying the matter. He also submits that in view of the peculiar facts and circumstances of the case, the instant application deserves to be accepted.

Having heard the learned counsel for the parties and after going through the record of the case, this Court is of the considered opinion that it is just and expedient to condone the delay of 132 days in filing the present revision petition.

Accordingly, the instant application is allowed for the reasons stated therein. The delay of 132 days in filing the revision petition is condoned.

CRR No. 977 of 2012

Having been declined the concession of bail u/s 12 of The Juvenile Justice (Care and Protection of Children) Act, 2000 (for short ''the Act'') vide impugned judgment dated 16.08.2011 (Annexure P-3) passed by the learned Additional Sessions Judge, Kurukshetra thereby dismissing the appeal of the petitioner filed u/s 52 of the Act against the order dated 15.6.2011 (Annexure P-2) passed by the learned Principal Magistrate, Juvenile Justice Board, Kurukshetra, the petitioner has approached this Court by way of instant criminal revision petition, assailing the judgment dated 16.8.2012 and order dated 15.6.2011.

Notice of motion was issued.

The brief facts of the case are that FIR No.118 dated 1.5.2011 was registered under Sections 376 and 452 of Indian Penal Code at Police Station, Pehowa, on the statement of Roopa Devi wife of Siddharth Sahni. The complainant alleged that she was resident of village Bherian. She had gone to Pehowa for purchasing the domestic articles. At 5.30 p.m., when she came back to her home, she saw inside the room that her daugther Pinky aged about 5 years was weeping. She further noticed that Mohammad Umar Ansari, petitioner herein, son of Jhamrudin caste Muslim resident of Kendua Tola, Police Station Manihari, District Kaithar (Bihar), who was working with the complainant at Aggarwal Jharoo Factory, Pehowa) and was residing at village Bherian, had thrown her daughter in undressed condition on the bed and was committing rape with her. The petitioner, on seeing the complainant, ran away from the spot. The petitioner was apprehended. The investigation was carried out. After conclusion of the investigation, the report u/s 173 Cr.P.C. was presented. However, it is an admitted fact on record that the petitioner is a juvenile.

The petitioner filed an application seeking bail but the same was dismissed by the learned Principal Magistrate, Juvenile Justice Board, vide his order dated 15.6.2011, primarily because of gravity of offence.

Dissatisfied with the order dated 15.6.2011, the petitioner filed his appeal before the learned Additional Sessions Judge, Kurukshetra, u/s 52 of the Act. The appeal of the petitioner was also dismissed by the learned Additional Sessions Judge, Kurukshetra, vide impugned judgment dated 16.8.2011, on the ground that there was likelihood that release of the petitioner on bail will bring him in association with some known criminals and may also expose himself to physical danger, which may defeat the ends of justice.

Feeling aggrieved against the above said order and judgment passed by the learned courts below, the petitioner has approached this Court by way of instant criminal revision petition.

Learned counsel for the petitioner submits that the impugned judgment dated 16.8.2011 (Annexure P-3) passed by the learned Additional Sessions Judge, Kurukshetra and also the order dated 15.6.2011 (Annexure P-2) passed by the learned Principal Magistrate, Juvenile Justice Board, Kurukshetra, are patently illegal on the face of it. He submits that the learned courts below have miserably failed to appreciate the provisions of Section 12 of the Act. Learned Magistrate has declined the bail to the petitioner referring to the gravity of the offence allegedly committed by the petitioner, while passing the impugned order dated 15.06.2011. He further submits that the learned Additional Sessions Judge, Kurukshetra, vide his order dated 16.08.2011, has not recorded his satisfaction on the basis of sufficient material on record that there was any apprehension of coming the petitioner in the company of known criminals. Learned counsel for the petitioner concluded by submitting that both the impugned orders are wholly unsustainable in law and the same are liable to be set aside.

Per contra, learned State counsel submits that in view of the gravity of the offence committed by the petitioner he is not entitled to be released on bail granting him the benefit of Section 12 of the Act.

After hearing learned counsel for the parties and going through the record of the case, this Court is of the considered opinion that the impugned orders are not sustainable in law for more than one reasons.

The question of law that falls for consideration of this Court is as to what is the scope and true import of Section 12 of the Act and whether the learned courts below have misconstrued the same, while passing the impugned orders.

Having considered the matter in the given fact situation of the present case, this Court is of the considered view that it is just and expedient to grant the concession of bail to the petitioner. Since the answer to the question of law posed hereinabove depends upon the interpretation of Section 12 of the Act, it would appropriate to reproduce the same which reads as under:-

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 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 bare reading of the provisions of Section 12 of the Act, reproduced above, would show that the juvenile in conflict with law shall be released on bail, notwithstanding anything contained in the Code of Criminal Procedure or in any other law for the time being in force, except in three contingencies specified u/s 12 (1) itself. Thus, it becomes clear that so far as the gravity of offence is concerned, the same can not be pressed into service for denying the concession of bail to juvenile u/s 12 of the Act.

However, it is also clear that juvenile can be denied the concession of bail, if any of the three situations specified u/s 12 (1) is available in any given fact situation. These three situations are : (i) if there appear reasonable grounds for believing that the release of the juvenile is likely to bring him into association with any known criminal; (ii) the release will expose the juvenile to moral, physical or psychological danger and; (iii) his release would defeat the ends of justice.

The court while denying the benefit of bail to a juvenile in conflict with law on either of the above said three grounds noted above, will record its satisfaction based on relevant material available on the record that release of the juvenile will either bring him into association with any known criminal or will expose him to moral, physical or psychological danger or his release would defeat the ends of justice.

After careful examination of the matter, this Court unhesitatingly hold that the harmonious construction of Section 12 of the Act is that the gravity of the offence is not a ground for rejection of application for bail u/s 12 of the Act. Once the legislature has not provided the gravity of the offence as one of the grounds for rejection of the bail, the bail to a juvenile cannot be denied on the ground of gravity of the offence. The legislative intent is clear in this regard and the provision is mandatory in nature.

A similar question came up for consideration before this Court in CRR No.1171 of 2012 (Pankaj vs. State of Haryana), wherein under the similar circumstances, a juvenile was granted concession of bail vide order dated 5.7.2012. The relevant observations made by this Court read as under:-

So far as the three contingencies provided u/s 12 (1) in which the bail can be refused to the juvenile in conflict with law are concerned, the denial has to be based on reasonable grounds for believing that anyone out of three contingencies, as a matter of fact, was available, in a given fact situation. The court will record its satisfaction for denying the concession of bail to a juvenile in conflict with law under any of the above noted three contingencies, if the Court comes to the conclusion that there were reasonable grounds to believe that any of the contingency was existing and supported with the relevant material available on the record of the case.

The view taken by this Court also finds support from the judgment passed by this Court in Criminal Revision No. 2913 of 2011 titled as Jaskaranpreet Singh versus State of Punjab decided on 9.12.2011, judgment of Delhi High Court in the case of Sandeep versus The State NCT of Delhi 2008 (1) RCR (Cri.) 146 and the judgment of Allahabad High Court in the case of Shiv Kumar @ Sadhu versus State of U.P.2010(3) Criminal Court Cases 459 (Allahabad).

The view taken by this Court further finds support from the judgment of Rajashthan High Court in Prakash v. State of Rajasthan, 2006 (2) RCR (Crl.) 530, judgment of Delhi High Court in Sandeep (In J.C.) v. The State of NCT of Delhi, 2008 (1) RCR (Crl.) 146 and the judgment of Allahabad High Court in Kalamuddin v. State of U.P., 2011 (7) RCR (Crl.) 1445.

Coming back to the facts and circumstances of the present case, neither there is any material available on record to show that any of the three contingencies specified u/s 12 (1) of the Act was existing nor anything has been mentioned by the learned courts below, in this regard. The learned Principal Magistrate, Juvenile Justice Board, has declined the bail to the petitioner-juvenile in conflict with law, primarily in view of the gravity of the offence. Since the gravity of the offence is not one of the considerations provided u/s 12 (1) of the Act, the impugned order dated 15.6.2011, passed by the learned Principal Magistrate, Juvenile Justice Board, Kurukshetra, is wholly unsustainable in law. The learned Magistrate has also mentioned that release of the petitioner on bail would defeat the ends of justice. However, there is no reference to any material available on record, which might have appeared to the learned Principal Magistrate as a reasonable ground for believing it. Thus, the impugned order passed by the learned Principal Magistrate is not sustainable in law for this reason, as well.

So far as the order passed by the learned Additional Session Judge, Kurukshetra dated 16.8.2011 is concerned, he has also failed to refer to any of the relevant materials available on record, which would appear to him as a reasonable ground for believing that the release of the petitioner would fall under either of the three contingencies u/s 12 (1) of the Act.

Learned State counsel could not point out towards any such material available on the record which will substantiate the apprehension raised by the learned courts below denying the bail to the petitioner u/s 12 of the Act.

In view of the totality of the facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court has no hesitation to conclude that the impugned orders passed by the learned courts below are not sustainable in law and the same are liable to be set aside. Thus, the impugned order dated 15.06.2011 passed by the learned Principal Magistrate Juvenile Justice Board, Kurukshetra and also the impugned judgment dated 16.8.2011 passed by the learned Additional Sessions Judge, Kurukshetra are hereby, set aside.

Resultantly, the instant revision petition is accepted. The petitioner is directed to be released on bail subject to furnishing adequate bail/surety bonds by his natural guardian or near relative to the satisfaction of the learned Principal Magistrate, Juvenile Magistrate, Kurukshetra.

However, it goes without saying that the learned trial Court shall proceed further with the trial, as per the merits of the case, without having been influenced with the observations made by this Court. Revision petition stands allowed.