X7 vs State Of Bihar

Heard learned counsel for the parties.

Though the petitioner has given full description in the application, it would be inappropriate to disclose his identity in view of the statutory provisions

prescribed under Section 74 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short „the Act of 2015‟). He is being referred

to in the cause title as X7.

Registry while uploading the order on the website shall also ensure that the cause title is reflected in similar manner.

This criminal revision application has been preferred under Section 102 of the Juvenile Justice (Care & Protection of Children) Act, 2015 against

the judgment dated 19.11.2019 passed in Cr. Appeal No. 41 of 2019 by learned 1st Additional Sessions Judge, Madhubani whereby the appeal was

dismissed against the order dated 28.08.2019 passed in Ghoghardiha P.S. Case No. 90 of 2019 registered under Section 25(1-b)(a), 26 and 35 of the

Arms Act by the Juvenile Justice Board, Madhubani, refusing prayer for bail of the petitioner.

The petitioner is lodged in the Observation Home at Darbhanga.

The Juvenile Justice Board, Madhubani, vide order dated 06.08.2019, determined the age of petitioner as 15 years, 06 months and 00 day on the

date of occurrence on the basis of Mark-sheet issued by Bihar School Examination Board produced by him. Hence, he was declared a juvenile in

conflict with law on the date of occurrence.

The prosecution case is based on the self statement of one Arbind Kumar to the SHO Ghoghardiha P.S. in which he has stated that while he was

discharging his official duty along with other police officials, they saw two persons coming on a bullet motorcycle. He asked them to stop the

motorcycle, but they tried to flee away. On chase made by the police personnel, they were apprehended and, on search, one country made pistol was

recovered from the possession of the petitioner.

The petitioner was remanded in the present case on 27.06.2019. His prayer for bail was rejected by the Juvenile Justice Board, Madhubani vide

order dated 28.08.2019.

The petitioner assailed the aforesaid order dated 28.08.2019 in appeal vide Cr. Appeal No. 41 of 2019 before the learned 1st Additional Sessions

Judge, Madhubani, who vide impugned order dated 19.11.2019, upheld the order passed by the Juvenile Justice Board, Madhubani and rejected the

appeal preferred by the petitioner.

Learned counsel for the petitioner submitted that the petitioner is an innocent child, who has been a victim of a false accusation. He contended that

no occurrence as alleged had ever taken place. Petitioner has no concern with the seized article. He further contended that the petitioner is student of

class-12 and pursuing his study from Krishna Yadav High School, Barhi, Phulparas.

He submitted that neither the Juvenile Justice Board nor the Special Court could appreciate the ratio laid down by this Court in Lalu Kumar &

Ors. vs. The State of Bihar & Ors. reported in 2019(4) PLJR 833 while passing order on the application for bail of the petitioner.

He contended that seriousness of the offence alleged cannot be made a ground for rejection of prayer for bail in the case of a child in conflict with

law. Moreover, there was no material before the court below to come to the conclusion that his release would expose him to moral, physical or

psychological danger.

Learned counsel for the State has opposed the prayer for grant of bail to the petitioner.

It would be evident from order of the Juvenile Justice Board that the prayer for bail of the petitioner was rejected on the ground that the appellant

is in bad association and has no control of his parents and if he will be released on bail, he may go in bad association and as such his release on bail

will defeat the ends of justice. The appellate court has rejected his appeal on the aforesaid ground.

The ambit and scope of Section 12 of the Act was under consideration before a Division Bench of this Court in Lalu Kumar & Ors. vs. The State

of Bihar & Ors. (supra).

In paragraphs 84 to 86 of the aforesaid judgment this Court observed:

“84. While interpreting Section 12, the Board is duty bound to be guided by the fundamental principles enumerated in Section 3 of the Act of 2015,

specially the principles of „best interest‟, „repatriation‟ and „restoration‟ of child. The fundamental principles in Section 3(xii) provides that a

child shall be placed in institutional care as a step of last resort after making a reasonable inquiry. The gravity and nature of the offence are immaterial

for consideration of bail under the Act of 2015. As per Section 12 of the Act of 2015, an application for bail is not decided by reference to

classification of offences, as bailable or non-bailable under the Cr.P.C. All persons alleged to be in conflict with law and apparently a child when

apprehended must be released except in the following three circumstances when there is reasonable ground for believing that :-

(i) The release is likely to bring that person into association with any known criminal;

(ii) The release is likely to expose the said person to moral or psychological danger; and

(iii) The release would defeat the ends of justice.

In all cases, the Board is required to record its reason, if it refuses to release the child on bail and the circumstances that laid to such a decision.

Taking surety is not essential for ordering release of the child on bail. The child may be released without surety also. The child may be placed under

the supervision of a „probation officer‟ or under the care of any „fit person‟ after release on bail. It further provides that in case the court has

directed release of the child on bail after fulfilling certain conditions, but the child is unable to fulfill those conditions in the next seven days, the Board

shall modify those conditions.

The Board is vested with the power to grant bail to any person, who has not completed the age of 18 years irrespective of the nature of offence

being “bailable†or “non-bailable†or specified in any of three categories of the Act, as “petty offencesâ€, “serious offences†and

“heinous offencesâ€​.â€​

The Division Bench further considered whether the seriousness of the offence alleged is a ground for rejection of the bail of a child in conflict with

law. It held that seriousness of the offence alleged cannot be made a ground for rejection of prayer for bail in the case of child in conflict with law for

simple reason that the principle of bail under the Act of 2015 is not the same as enumerated under Chapter XXXIII of the Cr.P.C. Bail and not

institutionalization continues to be the principle under the Act.

As noted above, the impugned order would reveal that the seriousness of the allegation and the other instances referred to in the proviso to sub-

section (1) of Section 12 of the Act of 2015 prevailed upon the mind of the appellate court and the Juvenile Justice Board in refusing the prayer for

bail of the petitioner. There was also no material before the court below to believe that the release of the petitioner would bring him into association

with any known criminals. There was no material to come to the conclusion that release would expose the petitioner to moral, physical or

psychological danger. The Court below has also not assigned any reason as to how in the event of grant of bail the ends of justice would be defeated.

For the reasons noted above, the impugned judgment dated 19.11.2019 passed in Cr. Appeal No.41 of 2019 by learned 1st Additional Sessions

Judge, Madhubani arising out of Ghoghardiha P.S. Case No. 90 of 2019 is not sustainable in law as it is not consistent with the aims and object of

Section 12 of the Act of 2015.

Accordingly, the impugned judgment dated 19.11.2019 passed in Cr. Appeal No. 41 of 2019 by learned 1st Additional Sessions Judge, Madhubani

is set aside. Consequently, the order dated 28.08.2018 passed in Ghoghardiha P.S. Case No. 90 of 2019 by the Juvenile Justice Board, Madhubani, is

also set aside.

The petitioner is directed to be released on bail on furnishing bail bond of Rs.10,000/-(ten thousand) with two sureties of the like amount each to

the satisfaction of Juvenile Justice Board, Madhubani in Ghoghardiha P.S. Case No. 90 of 2019.

The revision application stands allowed.

Since the court proceedings are being conducted through virtual mode and normal court functioning has not been restored till date, it is considered

appropriate to adopt the following procedure for communication of the present order:-

(i) The judgment, which has been dictated during the course of proceeding of the virtual court, shall be communicated to me on my email by the Sr.

Secretary.

(ii) The corrected copy of the judgment shall be transmitted by me from my email id to the Sr. Secretary, which shall be treated to be an authentic

copy of the judgment passed by this Court in the present proceeding.

(iii) Hard copy of the judgment duly signed by me shall be preserved in my residential office for documentation and future use, if any.

(iv) Let a copy of the judgment be sent to Mr. Gagan Deo Yadav, learned counsel for the petitioner also on his email.

(v) Let steps be taken by the Sr. Secretary/registry for up-loading of the present judgment without compromising with the norms of social distancing.