CRR No.3627 of 2013

11th March, 2014.

Petitioner Counsel: Mr. SUKHDEEP PARMAR
Respondent Counsel: Mr. GURVINDER S. SANDHU

JUDGMENT

JUDGMENT :- Petitioner Bittu, a juvenile in conflict with law (hereinafter called the juvenile) presently in protective custody in Observation Home, Ambala, in FIR No.368 dated 3.7.2013 under Sections 363, 366-A, 376 and 120-B IPC as also under Section 4 of the Protection of Children from Sexual Offences Act, 2012 of Police Station, Model Town, Panipat, by way of this revision petition has challenged order (Annexure P-2) dated 31.7.2013 passed by the Principal Magistrate, Juvenile Justice Board, Panipat vide which his bail application was rejected and order (Annexure P-3) dated 14.8.2013 passed by the Additional Sessions Judge, Panipat vide which his appeal filed against order (Annexure P-2) was dismissed.

2. In this revision petition, it is claimed that neither the appellate court nor the Principal Magistrate, Juvenile Justice Board, Panipat took into consideration the relevant legal material and rather taking the entire matter in a different tenor and tone than the one permitted by law, dismissed his prayer for bail.

3. As per the prosecution case, the juvenile had taken away the victim by enticing her away and had committed forcible sexual intercourse with her.

4. This revision petition has been strongly resisted by the respondent-State. Asserting validity and legality of the orders (Annexures P- 2 and P-3) passed by the Principal Magistrate, Juvenile Justice Board, Panipat and the Additional Sessions Judge, Panipat respectively, dismissal of the revision petition has been prayed.

5. Hearing has been provided to learned counsel for the parties while going through the paper book.

6. At the outset, it may be mentioned that somewhat different terminology has been used in the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short, the Juvenile Act). So is the position with regard to the Haryana Juvenile Justice (Care and Protection of Children) Rules, 2009 (for short, the Haryana Rules) which were notified in Haryana Government Gazette on 14.9.2009. For the term 'accused' used in the Code of Criminal Procedure, the term juvenile is used in the Juvenile Act and the Rules thereunder is 'juvenile in conflict with law'. Similarly, for the term 'trial' in the Code of Criminal Procedure, the word 'inquiry' has been used in the Juvenile Act and the Rules thereunder.

7. If we go by the statutory mandate, bail in case of a juvenile in conflict with law, is a general rule whereas refusal is an exception. Such refusal has also to be in consonance with the grounds mentioned in Section 12 of the Juvenile Act, which provision for ready reference, is reproduced as below:

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.

8. Perusal of this provision reveals that it incorporates a non-obstante clause which means that irrespective of anything contained in the Code of Criminal Procedure or in any other law for the time being in force, a juvenile in conflict with law has to be released on bail; refusal of bail is possible only in three eventualities which are well-explained in Section 12 of the Juvenile Act itself. It, thus, follows that refusal of bail to a juvenile is to be ordered only in any of the three situations specified under Section 12(1) of the Juvenile Act. These three situations are as below:

(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.

9. Even while denying the benefit of bail to a juvenile in conflict with law, the court has not only to refer to one or more of these three grounds but is also to record its satisfaction founded on some relevant material, availability of which has to be shown on the record.

10. It, thus, implies that no reasons other than those mentioned in Section 12(1) of the Juvenile Act are to be valid for refusal of bail. Since gravity of the offence is not incorporated as one of the reasons for refusal of bail, this ground cannot be taken into consideration for rejection of request for bail.

11. When order (Annexure P-2) of the Principal Magistrate, Juvenile Justice Board, Panipat is glanced through, it transpires that rejection of bail of juvenile has been ordered primarily on the ground of gravity of the offence. Though very feeble attempt has been made to justify refusal on the ground that "ends of justice would be defeated if bail is granted" but no material worth the name has been referred, to arrive at such a conclusion.

12. Mere reproduction of language of Section 12(1) of the Juvenile Act in order to reject the application for bail, would not be in tune with the letter and spirit of the law relating to bail to juveniles in conflict with law. Not only the Principal Magistrate, Juvenile Justice Board, Panipat went wrong in denying bail on 31.7.2013 to the juvenile but the appellate authority also in order (Annexure P-3) dated 14.8.2013 increased the misery of the juvenile, when a long discourse completely unconnected with grounds mentioned in Section 12(1) of the Juvenile Act was given by the appellate court justifying order (Anenxure P-2) of the Principal Magistrate, Juvenile Justice Board, Panipat.

13. The following observations made by the appellate authority are completely in digression of the domain and sweep of rejection of bail ordained by the legislature as in Section 12 of the Juvenile Act:

"The plea of appellant for bail herein, on the compass of his juvenility is more in nature of a shield to dodge or dupe the arms of law. Such plea cannot be allowed to come to his rescue because the offence in relation to this FIR appears to have been committed with meticulous modus operandi. The courts of law must be sensitive in dealing with such juveniles who are involved in cases of serious nature like murder, gang rape, rape or host of other offences."

14. It is also noteworthy that in statement under Section 164 Cr.PC, the victim had considerably diluted her statement given under Section 161 Cr.PC when on 10.7.2013 she had stated before the Judicial Magistrate Ist Class, Panipat as under:

"Stated that I went with the accused as per my own free will, whose name is Bittu. I don't want to say anything more. Bittu has not done anything wrong with me. He be released. I came here with my mother Tanvir and I want to go with her."

15. Even this important aspect was casually bye-passed by the appellate authority by making following observations:

"No evidentiary value can be assigned at this stage, to the statement of victim-Jeba so recorded under Section 164 Cr.PC on 10.7.2013 because the statement under Section 164 Cr.PC can be only for the purpose of corroboration or contradiction, when the maker thereof, subsequently appears in witness box."

16. At this stage, it may be noticed with concern that as per Rule 14 (1) of the Haryana Rules framed under the Juvenile Act, entire proceedings in respect of the juvenile are to be completed within a period of four months which period is extendable upto six months in case there are large number of witnesses and cognizance to this effect is also taken by the Board. For ready reference, the said Rule is appended as below:

"14(1) The Board shall complete every inquiry within the stipulated time of four months and on recording a finding about juvenile's involvement in the alleged offence, pass one of the seven dispositional orders enumerated in section 15 of the Act."

17. This rule implies that every inquiry is to be completed within four months. The word 'shall' used herein sufficiently discloses emphasis as also intention of the framers of the Haryana Rules under the Juvenile Act.

18. At this stage, reference may also be made to Rule 4(1) of the Haryana Rules, which for ready reference is given as below:

"4(1) The Principal Magistrate of the Board shall review the pendency of cases before the Board and take such steps, as may be necessary in the expeditious disposal of the cases."

19. As per this Rule, the Principal Magistrate of the Juvenile Justice Board shall periodically review pendency of the cases to move forward for expeditious disposal of such matters.

20. Sub-Rules 3 and 5 of Rule 8 of the Haryana Rules provide as under:

"(1) x x x

(2) x x x

(3) The Board shall meet on all working days of a week, unless the case pendency is less in a particular district and concerned authority issues an order in this regard.

x x x

(5) Every member of the Board shall attend a minimum of five hours per sitting."

21. Further reference may also be made to Sub-Rules 6, 7 and 8 of Rule 12 of the Haryana Rules as below:

"Rule 12

(1) x x x

(2) x x x

(3) x x x

(4) x x x

(5) x x x

(6) Every inquiry by the Board shall be completed within a period of four months after the first summary inquiry and only in exceptional cases involving trans-national criminality, large number of accused and inordinate delay in production of witnesses, the period of inquiry may be extended by two months on recording of reasons by the Board.

(7) In all other cases except where the nature of alleged offence is serious, delay beyond four to six months shall lead to the termination of the proceedings.

(8) Where the proceedings are delayed beyond six months on account of serious nature of the offence alleged to have been committed by the juvenile, the Board shall send a periodic report of the case to the Chief Judicial Magistrate stating the reason for delay as well as steps being taken to expedite the matter."

These important provisions have missed the requisite attention of the authorities.

22. It is to be noticed that the Juvenile Justice Board as also the Appellate Authority ventured to bring case of the revisionist-petitioner under one of the three contingencies contained in Section 12 of the Juvenile Act and that too without any supportable material or evidence, and thus, the general rule of grant of bail contained in Section 12 of the Juvenile Act was not made available to the petitioner. Moreover, the Juvenile Justice Board not only failed to regulate its business in such a way so as to complete each and every inquiry within the stipulated time but also made the petitioner to continue in avoidable protective custody. No intimation as per Sub Rule 8 of Rule 12 of the Haryana Rules was sent to the court of Judicial Magistrate concerned.

23. Thus, it is to be noticed that not only the order (Annexure P-2) passed by Principal Magistrate, Juvenile Justice Board, Panipat has lacked reference to any material available on record to bring the case within the given eventualities to deny concession of bail to the juvenile, but even orders of the appellate authority lacked the same. Both the orders had clearly failed to refer to any relevant material available on record, which could be sufficient enough for recording satisfaction of the court that there was a reasonable ground for believing that the release of the petitioner would fall under any of the three contingencies detailed and described in Section 12 of the Juvenile Act.

24. Taking entire spectrum of facts and circumstances in view, it is concluded that the impugned orders passed by the learned courts below are neither sustainable on facts nor in law and thus, the same are liable to be set aside. Sequelly, order (Annexure P-2) dated 31.7.2013 passed by the Principal Magistrate, Juvenile Justice Board, Panipat and order (Annexure P- 3) dated 14.8.2013 passed by the Additional Sessions Judge, Panipat are hereby set aside.

25. Consequently, accepting this revision petition, the juvenile is ordered to be released on bail subject to furnishing adequate bail/surety bonds by his natural guardian to the satisfaction of the Principal Magistrate, Juvenile Justice Board, Panipat.

26. Petitioner-accused is in custody since 18.7.2013. Inquiry is yet not over. Proceedings are continuing. The very fact that inquiry has not been completed within the stipulated period reveals that not only the right of speedy trial of accused in general terms but even provisions of Section 309 Cr.PC, as also of Rule 4 and Rule 12 of the Haryana Rules, had not even engaged the attention of the Principal Magistrate of Juvenile Justice Board. Sequelly, the Principal Magistrate, Juvenile Justice Board, Panipat would complete the inquiry within a month, even by conducting day to day proceeding, if need arises, from the date of receipt of certified copy of this order making compliance with the provisions mentioned earlier.

Compliance by fax.

Ordered accordingly.