Karnataka High Court
Manoj S/O Hanamanth Pujar vs The State Of Karnataka on 12 July, 2023
Bench: Anil B Katti
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CRL.RP No. 100453 of 2022
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
R
DATED THIS THE 12TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL REVISION PETITION NO. 100453 OF 2022
BETWEEN:
MANOJ S/O HANAMANTH PUJAR
AGE. 16 YEARS, OCC. STUDENT,
R/O. LAKSHMI SINGANAKERI DHARWAD,
SINCE MINOR R/BY HIS MOTHER
SMT. KASTURI W/O. HANAMANTH PUJAR,
AGE. 38 YEARS, OCC. HOUSEHOLD,
R/O. LAKSHMI SINGANKERI, DHARWAD. ...PETITIONER
(BY SRI. IRANAGOUDA K. KABBUR AND
SRI. SHIVAKUMAR N. BENDIGERI, ADVS.)
AND:
Digitally signed by
CHANDRASHEKAR
CHANDRASHEKAR LAXMAN 1. THE STATE OF KARNATAKA,
LAXMAN KATTIMANI
KATTIMANI
Date: 2023.07.14
13:29:26 +0530
DHARWAD TOWN POLICE STATION
REPRESENTED BY S.P.P.
HIGH COURT OF KARNATAKA
DHARWAD.
2. RAVINDRA DODDAMANI
AGE. 47 YEARS, OCC. SECURITY GUARD,
R/O. MORE PLOT, MAYUR COLONY,
HONGIRAN BUILDING, HOUSE NO.10,
DHARWAD.
...RESPONDENTS
(BY SRI. PRAVEEN UPPAR, HCGP FOR R1,
R2 SERVED)
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CRL.RP No. 100453 of 2022
THIS CRIMINAL REVISION PETITION IS FILED U/SEC. 102 OF
JUVENILE JUSTICE ACT 2015 SEEKING TO SET ASIDE THE ORDER
DATED 04.06.2022, PASSED BY THE II ADDITIONAL SESSIONS
JUDGE, DHARWAD IN CRIMINAL APPEAL NO. 35/2022 AND ORDER
DATED 11.03.2022, PASSED BY THE JUVENILE JUSTICE BOARD AT
DHARWAD IN JC NO. 10/2022 (DHARWAD TOWN PS CRIME
222/2021) FOR THE OFFENCES PUNISHABLE U/SEC. 354, 354D, 363,
366(A), 376D, 34 OF IPC AND U/SEC. 4,6,8, AND 14 OF POCSO ACT,
SECTION 67(B) OF INFORMATION TECHNOLOGY ACT, SECTION
3(1)(w), 3(2)(va) OF SC/ST (P.A.) ACT AND RELEASE THE REVISION
PETITIONER/CCWL NO.4 ON BAIL BY ALLOWING THIS REVISION
PETITION.
THIS CRIMINAL REVISION PETITION COMING ON FOR ORDERS
AND THE SAME HAVING BEEN HEARD AND RESERVED FOR ORDER
ON 20.06.2023, THIS DAY, THE COURT, MADE THE FOLLOWING:
ORDER
Appellant/CCWL-4 feeling aggrieved by the order passed
by first Appellate Court on the file of II Addl. District and
Sessions and Special Judge, Dharwad, in Crl.A.No.35/2022
dated 04.06.2022 preferred this appeal.
2. Parties to the petition are referred with their ranks
as assigned in the trial Court for the sake of convenience.
3. The factual matrix leading to the case of
prosecution can be stated in nutshell to the effect that CCWL-1
was following and teasing victim girl since one year and was
pressurizing her to love him. In the month of August 2021, on
Saturday CCWL-1 came to Basel Mission College, Dharwad,
along with CCWL-7 and by force took victim in bus near KUD
CRL.RP No. 100453 of 2022
where CCWLs-2, 4 and 6 joined them and then victim was
taken on bike near Om Ashram. CCWLs- 6 and 7 also reached
the said place, CCWL-7 kissed and touched body of victim and
tried to undress her. Thereafter, CCWL-7 ran away from the
spot by seeing the incident. CCWLs-1 to 7 have committed
forcible sexual intercourse upon victim by using condom. They
have video-graphed incident through mobile with CCWL-2 and
all of them administered threat to victim not to disclose about
the incident to anybody. After one week, CCWL-1 again came
to Basel Mission College and met victim on showing video of
earlier incident pressurized victim to come to Suryanagara.
CCWLs-2 to 4, 6 and 8 threatened that if she discloses about
the incident to anybody they are going to viral the video in
social media. CCWLs-2, 4 and 6 have committed forcible
sexual intercourse again on victim and further threatened to kill
her, if she discloses about the incident to anybody. On these
allegations made in the complaint, case was registered in
Dharwad town police station in Cr.No.222/2021 for the offences
punishable under Sections 354, 354(D), 363, 366(A), 376D
read with 34 IPC, Sections 4, 6, 8 and 14 of the POCSO Act,
2012. On completion of investigation, charge-sheet is filed.
CRL.RP No. 100453 of 2022
4. In response to notice, learned High Court
Government Pleader for respondent No.1/State is present.
Respondent No.2 though served remained absent. Learned
High Court Government Pleader has not filed any separate
objections. However, under memo dated 20.06.2023 has
produced documents.
5. Heard the arguments of both sides.
6. On careful perusal of the charge-sheet material and
complaint filed by victim, it would go to show that allegations
are against all CCWLs having committed penetrative sexual
assault on victim. The incident of sexual assault is alleged to
have been video-graphed through the mobile of CCWL-2.
7. The earlier bail application filed by CCWL-4 at crime
stage before Juvenile Justice Board came to be rejected on
10.01.2022. The appeal filed against the said order in
Crl.A.No.10/2022 also came to be dismissed by order dated
08.02.2022. After filing charge-sheet, fresh bail application
was filed before Juvenile Justice Board on 11.03.2022 which
came to be rejected which is challenged before the first
Appellate Court on the file of II Addl. District and Sessions and
Special Judge, Dharwad, in Crl.A.No.35/2022. The first
CRL.RP No. 100453 of 2022
Appellate Court by order dated 04.06.2022 dismissed the
appeal.
8. The charge-sheet material would go to show that
the age of appellant/CCWL-4 is 17 years and the date of birth
of victim girl is 29.06.2004. Appellant and victim both were
minors as on the date of incident. The charge-sheet material
would reveal that CCWLs-1 to 6 have committed penetrative
sexual assault on the victim.
9. Learned counsel for the appellant argued that
consideration of regular bail under Section 439 of Cr.P.C. and
the bail application under Section 12 of the Juvenile Justice
(Care and Protection of Children) Act, 2015 (hereinafter
referred to as 'JJ Act') are different. The nature and gravity of
offence is not a matter required to be considered while deciding
the application filed under Section 12 of the JJ Act.
10. Per contra, learned High Court Government Pleader
for respondent/State has argued that there are serious
allegations against appellant/CCWL-4 of committing penetrative
sexual assault on victim and the incident has been video-
graphed through the mobile of CCWL-2. Therefore,
appellant/CCWL-4 is not entitled for bail.
CRL.RP No. 100453 of 2022
11. Learned counsel for appellant relies on the
judgment of Hon'ble Apex Court in SAMPURNA BEHURA VS.
UNION OF INDIA AND OTHERS [(2018) 4 SCC 433]
wherein the Hon'ble Apex Court has issued directions to the
concerned authority for implementation of provisions of the JJ
Act.
12. Learned counsel for appellant relied on the
judgment of Punjab and Haryana High Court at Chandigarh in
VISHVAS VS. STATE OF PUNJAB in CRR No.53/2021
disposed of on 08.02.2021 wherein on analyzing Section 12 of
the JJ Act held that gravity of offence is immaterial in deciding
the bail application. The bail of a child in conflict with law
cannot be rejected in a routine manner and if the bail is
declined, a reasoned order has to be given by the Board. A
juvenile has to be released on bail mandatorily unless and until
the exceptions carved out in proviso to Section 12 (1) of the JJ
Act, 2015, itself are made out. The exceptions are noted
being:
"a) a reasonable ground for believing that the
release is likely to bring the juvenile into
association with any known criminal;
CRL.RP No. 100453 of 2022
b) his release is likely to expose him to any
moral, physical or psychological danger; and
c) his release would defeat the ends of
justice."
In view of the principles enunciated in the
aforementioned judgment, it is evident that while dealing with
the exceptions enumerated under Section 12 of the JJ Act there
must be material evidence on record to invoke exception
a) known criminal, b) expose made to any morale, physical or
psychological danger and c) 'defeats ends of justice'. The third
exception namely ends of justice being defeated has to be
considered in the context of welfare of the juvenile.
13. In view of Section 13 (1)(ii) of JJ Act, 2015, no
sooner CCWL is apprehended and produced before the JJ
Board, the Probation Officer has to be informed. The JJ Board
has to call for Social Investigation Report which has been
defined in Rule 2 (xvii) of the Juvenile Justice (Care and
Protection of Children) Model Rules, 2016 (hereinafter referred
to as 'Rules'). The said report becomes vital for enquiry to be
done by the Board while passing orders in relation to such child
as it deems fit under Sections 17 and 18 of the JJ Act. Rule 10
envisages post-production processes by the Board and the
CRL.RP No. 100453 of 2022
Social Investigation Report for children in conflict with law has
to be secured in Form No.6.
14. In the present case, it appears from the records
that the JJ Board has called for the report from Dharwad
Institute of Mental Health and Neuro Sciences, Belagavi Road,
Dharwad, with regard to mental condition of all CCWLs. The
learned High Court Government Pleader has produced the
certified copy of the report submitted by DIMHANS. The report
would reveal that apart from medical condition of CCWL, the
family background and other requirements have been collected.
However, in terms of Rule 10 of the Rules, Social Investigation
Report for children in conflict with law has to be secured in
Form No.6 from Probation Officer/Voluntary/Non-governmental
Organization.
15. Learned counsel for appellant in support of his
contention that JJ Board was under legal obligation to secure
Social Investigation Report from the Probation Officer and the
said report has to be taken into consideration while deciding
the bail application filed under Section 12 of the JJ Act, relied
on the latest judgment of Allahabad High Court in XXX
JUVENILE VS. STATE OF UTTAR PRADESH AND ANOTHER
CRL.RP No. 100453 of 2022
disposed of on 25.04.2023. The Social Information Report of
Probation Officer has to be the basis for the JJ Board while
deciding the bail application or to pass any order keeping in
mind the welfare and well being of the child. It has been
further held that the gravity of the offence is not a relevant
consideration for declining the bail to the juvenile. A juvenile
can be denied the concession of bail of any of the three
contingencies specified under Section 12 (1) of the JJ Act, 2015
is available. The Social Investigation Report from the Probation
Officer has to be obtained within the time slot fixed in terms of
Section 13 (1) of the JJ Act in Form No.6. The Hon'ble
Allahabad High Court in paragraph 20 of its judgment has held
as follows:
"20. 'Form - 6' of the Juvenile Justice (Care and
Protection of Children) Model Rules, 2016, contains a
detailed proforma of the social investigation report.
The report has three parts; the first part requires the
Probation Officer to give the data or information
regarding the close relatives in the family, delinquency
records of the family, social and economic status,
ethical code of the family, attitude towards religion, the
relationship amongst the family members, the
relationship with the parents, living conditions, etc.
Thereafter, the report requires the Probation Officer to
provide the child's history regarding his mental
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CRL.RP No. 100453 of 2022
condition, physical condition, habits, interests,
personality traits, neighbourhood, neighbours' report,
and school, employment, if any, friends, the child being
subject to any form of abuse, circumstances of
apprehension of the child, mental condition of the child.
The most important part of the report is the third part
i.e., the result of inquiry where the Probation Officer is
required to inform the Board about the emotional
factors, physical condition, intelligence, social and
economic factors, suggestive cause of the problems,
analysis of the case including reasons/contributing
factors for the offence, opinion of experts consulted
and recommendation regarding rehabilitation by the
Probation Officer/Child Welfare Officer. It is incumbent
upon the Juvenile Justice Board to take into
consideration the social investigation report and make
an objective assessment on the reasonable grounds for
rejecting the bail application of the juvenile."
16. Keeping in mind the above referred legal
requirement for deciding the bail application of CCWL in terms
of Section 12 of the JJ Act, the Social Assessment Report
obtained by the JJ Board from DIMHANS, Dharwad, as
produced by the learned Government Pleader is perused though
not in prescribed Form No.6 by the Probation Officer. The
report with reference to CCWL-4 goes to show that in the first
part regarding mental and physical capacity to commit alleged
offence, it is reported that neglect/poor supervision by the
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CRL.RP No. 100453 of 2022
family members. Intellectual disability is reported as IQ-104
average intelligence. In the second part - family history, it is
reported that family belongs to middle socio economic status,
father committed suicide, single parenting and poorly attached
to family members. School history reveals that he is a dropped
out student of I PUC and no history of child labour. Peer
relationships - negative peer influences, spends more time with
peer groups, hence, more vulnerable to peer influences.
Regarding abuse and trauma - no history suggestive of abuse
and trauma. In third part, child's knowledge of consequences
of committing the alleged offence, it is reported that child's
understanding of social/interpersonal and legal consequences of
committing offence is reported to be poor and other
observation is concealing about information related to the
incident. The recommendations are family counseling,
individual therapy - life style modification/life skills training.
Long term follow up with mental health professionals,
vocational rehabilitation/training.
17. If the said report is taken into consideration and
tested in the light of guidelines enumerated in the
aforementioned judgment of Hon'ble Allahabad High Court,
then it is evident that the same would not meet the triple test
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CRL.RP No. 100453 of 2022
envisaged under Section 12 (1) of the JJ Act to deny bail to
juvenile.
18. The first Appellate Court while declining bail to
juvenile CCWL-4 in paragraph 28 of its order referred to the
judgment of Hon'ble Apex Court in OM PRAKASH VS. STATE
OF RAJASTHAN AND OTHERS [2012 (5) SCC 201]. I have
carefully gone through the referred judgment of Hon'ble Apex
Court wherein it has been observed and held at paragraph 37
as follows:
"In view of the aforementioned discussion and
analyses based on the prevailing facts and circumstances
of the case, we are of the view tht respondent No.2 Vijay
Kumar and his father have failed to prove that respondent
No.2 was a minor at the time of commission of offence
and hence, could not have been granted the benefit of the
Juvenile Justice Act which undoubtedly is benevolent
legislation but cannot be allowed to be availed of by an
accused who has taken the plea of juvenility merely as an
effort to hide his real age so as to create a doubt in the
mind of the Courts below who thought it appropriate to
grant him the benefit of a juvenile merely by adopting the
principle of benevolent legislation but missing its vital
implication that although the juvenile Justice Act by itself
is a piece of benevolent legislation, the protection under
the same cannot be made available to the accused who
infact is not a juvenile but seeks shelter merely by using it
as a protective umbrella or statutory shield. We are
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CRL.RP No. 100453 of 2022
under constraint to observe that this will have to be
discouraged if the evidence and other material on record
fail to prove that the accused was a juvenile at the time of
commission of the offence."
The Hon'ble Apex Court having found that there is no
evidence to prove the minority of accused ordered to send the
accused for trial of Court competent jurisdiction where the trial
is pending.
19. In the present case, CCWL-4 has not taken plea of
juvenility merely as an effort to hide his real age to avail the
benefit under the JJ Act. The first Appellate Court in paragraph
20 of its order has recorded specific finding that age of CCWL-4
is 17 years. The preliminary individual assessment report for
Juvenile Justice Board obtained by the Juvenile Board would
also reveal that the age of CCWL-4 is 17 years. Therefore, the
aforementioned judgment of Hon'ble Apex Court has no
application to the facts of the present case and muchless, the
judgment of Hon'ble Apex Court does not deal with the bail
application of juvenile in terms of Section 12 of the JJ Act. The
welfare and well being of the CCWL-4 can be taken care of by
his mother and she is a fit and proper person to keep CCWL-4
under her custody. Therefore, in the light of the judgment of
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CRL.RP No. 100453 of 2022
Hon'ble Punjab and Haryana High Court and Hon'ble Allahabad
High Court referred above, CCWL-4 is entitled for bail.
Consequently, proceed to pass the following:
ORDER
Revision petition filed by the guardian - mother of CCWL-
4 is hereby allowed.
The order of the first Appellate Court on the file of II
Addl. District and Sessions Judge and Special Judge, Dharwad,
in Crl.A.No.35/2022 dated 04.06.2022 is set aside.
CCWL-4 is ordered to be released on bail on natural
guardian - mother executing personal bond and surety bond for
Rs.1,00,000/- with one surety for likesum amount to the
satisfaction of the JJ Board, Dharwad, subject to following
conditions:
i) Guardian - mother of CCWL-4 furnishing and
undertaking that upon release on bail of CCWL-4 will
not be permitted to go into contact or association with
any note criminal or allowed to be exposed to any
morale or physical or psychological danger and further
she will ensure that the juvenile will not repeat the
offence,
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CRL.RP No. 100453 of 2022
ii) Mother of CCWL-4 further furnish undertaking that
juvenile will either pursue his studies or encourage to
do constructive activities and not to be allowed to
waste his time in unproductive and excessive
recreational pursuits,
iii) Juvenile and his mother will report to the Probation
Officer on first of every three months' commencing
from 1st August, 2023, and if same falls on holiday,
then on the following working day,
iv) The Probation Officer shall keep a strict vision on the
activities of juvenile - CCWL-4 and regularly draw up
his social investigation report that would be submitted
to the Juvenile Justice Board, Dharwad.
The registry is directed to transmit the records with the
copy of this judgment to trial Court.
(Sd/-)
JUDGE
Jm/-
