Gaurav Yadav Thr. Natural ... vs The State Of Madhya Pradesh
2021 Latest Caselaw 2997 MP

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                 HIGH COURT OF MADHYA PRADESH\\
                             CRR-1403-2021
 (GAURAV YADAV THR. NATURAL GUARDIAN (FATHER) AWDHESH YADAV Vs THE STATE OF
                              MADHYA PRADESH)


Gwalior, Dated : 06.07.2021

       Heard through video conferencing.

       Shri Nitin Agarwal, counsel for the revisionist.

       Shri Manish Nayak, Panel Lawyer for the respondent/State.

Shri Suresh Agarwal with Ms. Vijaya Pal, counsel for the complainant.

The first criminal revision petition has been filed under Section 102 of

the Juvenile Justice (Care and Protection of Children) Act, 2015 against the

judgment dated 04.06.2021 passed by the Special Judge, (POCSO Act), Datia

in Criminal Appeal No.36/2021, whereby the order dated 10.05.2021 passed

by the Juvenile Justice Board, Datia have been affirmed and the bail

application moved on behalf of the revisionist for offence registered at Crime

No. 33 of 2021 offences under Sections 302, 294 and 34 of IPC and and

Sections 3 (2)(V) of SC/ST (Prevention of Atrocities) Act, District Datia has

been rejected.

It is alleged that the revisionist is a juvenile aged about 15 years and

there is no dispute with respect to the age of the present revisionist. It is

submitted that provision of bail to Juvenile given under Section 12 of the

Juvenile Justice Act, wherein it is apparently clear that looking to the age of

the revisionist as he is a juvenile and the bail should be extended to him for

even in heinous offences. It is argued that the learned Juvenile Justice Board

as well as the Appellate Court have rejected the bail of the present revisionist

only on the fact that the report of the Probation Officer in the Juvenile is not

proper against the present revisionist. It is argued that the Juvenile Board as

well as the Appellate Court have not considered the prime object of Section

HIGH COURT OF MADHYA PRADESH\\ CRR-1403-2021 (GAURAV YADAV THR. NATURAL GUARDIAN (FATHER) AWDHESH YADAV Vs THE STATE OF MADHYA PRADESH)

12 of Juvenile Justice Act, 2015 which clearly stipulates that the juvenile

should be extended the benefit of bail. He is in custody since 25.01.2021. He

is ready to abide by all the terms and conditions that may be imposed by this

Court while considering the application for grant of bail.

Counsel for the State as well as complainant have opposed the

revision stating that both the Court have considered all the aspect which have

been raised by the revisionist in the present revision and have rejected the

application of the present revisionist. They prayed for dismissal of the present

revision.

This Court vide its order dated 25.06.2021 has directed for the State

counsel to call for the report from Probation Officer with respect to the

revisionist and on 05.07.2021 counsel for the revisionist was also directed to

file a specific affidavit of his father that he wants to take the custody of his

son and will keep him properly and will take care that the revisionist is not

exposed to illegal activities. Every care and cautions taken by him. In

pursuance to the same, a report dated 29.06.2021 has been produced by the

Government Advocate on 05.07.2021 which reads as under:-

HIGH COURT OF MADHYA PRADESH\\ CRR-1403-2021 (GAURAV YADAV THR. NATURAL GUARDIAN (FATHER) AWDHESH YADAV Vs THE STATE OF MADHYA PRADESH)

From perusal of the aforesaid findings given by the Probation Officer

it is seen that the company of the present revisionist is not good and he is not

obeying the directions of his parents. The father has filed the specific

affidavit to the following effect:-

HIGH COURT OF MADHYA PRADESH\\ CRR-1403-2021 (GAURAV YADAV THR. NATURAL GUARDIAN (FATHER) AWDHESH YADAV Vs THE STATE OF MADHYA PRADESH)

Section 12 of Juvenile Justice (Care and Protection of Children) Act,

2015 reads as under:-

"12. Bail to a person who is apparently a child alleged to be in conflict with law -- (1) When any person, who is apparently a child and is alleged to have committed a bailable or non-bailable offence, is apprehended or detained by the police or appears or 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 or placed under the supervision of a probation officer or under the care of any fit person:

Provided that such person shall not be so released if there appears reasonable grounds for believing that the release is likely to bring that person into association with any known criminal or expose the said person to moral, physical or psychological danger or the person's release would defeat the ends of justice, and the Board shall record the reasons for denying the bail and circumstances that led to such a decision.

(2) When such person having been apprehended is not released on bail under sub-section (1) by the officer-in-charge of the police station, such officer shall cause the person to be kept only in an observation home in such manner as may be prescribed until the person can be brought before a Board.

(3) When such person is not released on bail under sub-section (1) by the Board, it shall make an order sending him to an observation home or a place of safety, as the case may be, for such period during the pendency of the inquiry regarding the person, as may be specified in the order.

(4) When a child in conflict with law is unable to fulfil the conditions of bail order within seven days of the bail order, such child shall be produced before the Board for modification of the conditions of bail."

From perusal of the aforesaid section it is apparently clear that

juvenile can be extended bail even in heinous offences. The object of framing

the Juvenile Justice Act of 2015 is required to be seen.

HIGH COURT OF MADHYA PRADESH\\ CRR-1403-2021 (GAURAV YADAV THR. NATURAL GUARDIAN (FATHER) AWDHESH YADAV Vs THE STATE OF MADHYA PRADESH)

The Division Bench of Chattisgarh High Court had an occasion to deal

with the question of grant of bail to the Juvenile in the case of Tejram

Nagrachi juvenile vs. State of Chattisgarh M.Cr.C. No. 8523/2016 vide

order dated 5.4.2019 has held as under:-

12. It is thus significant to note that treatment of the child in a manner consistent with the promotion of the child's sense of dignity and worth coupled with reinforcing the child's respect for the human rights and fundamental freedoms of others as also the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in the society are the stated objects and reasons for enacting the Act of 2015, which includes the special provision for grant of bail under Section 12 of the Act of 2015 which are apparently more beneficial to the child.

16. To sum up, we hold that grant of bail to a juvenile is required to be dealt with under Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015 and not under Sections 437 or 439 of the Code of Criminal Procedure."

The Supreme Court by order dated 23-3-2020 passed in the case of IN

RE : CONTAGION OF COVID 19 VIRUS IN PRISONS in SUO MOTU

W.P. (C) No. 1/2020 has directed all the States to constitute a High Level

Committee to consider the release of prisoners in order to decongest the

prisons. The Supreme Court has observed as under :

"The issue of overcrowding of prisons is a matter of serious concern particularly in the present context of the pandemic of Corona Virus (COVID - 19).

Having regard to the provisions of Article 21 of the Constitution of India, it has become imperative to ensure that the spread of the Corona Virus within the prisons is controlled. We direct that each State/Union Territory shall constitute a High Powered Committee comprising of (i) Chairman of the State Legal Services Committee,

(ii) the Principal Secretary (Home/Prison) by whatever designation is known as, (ii) Director General of Prison(s), to determine which class of prisoners can be released on parole or an interim bail for such period as may be thought appropriate. For instance, the State/Union Territory could consider the release of

HIGH COURT OF MADHYA PRADESH\\ CRR-1403-2021 (GAURAV YADAV THR. NATURAL GUARDIAN (FATHER) AWDHESH YADAV Vs THE STATE OF MADHYA PRADESH)

prisoners who have been convicted or are under trial for offences for which prescribed punishment is up to 7 years or less, with or without fine and the prisoner has been convicted for a lesser number of years than the maximum.

It is made clear that we leave it open for the High Powered Committee to determine the category of prisoners who should be released as aforesaid, depending upon the nature of offence, the number of years to which he or she has been sentenced or the severity of the offence with which he/she is charged with and is facing trial or any other relevant factor, which the Committee may consider appropriate."

Taking into consideration the overall facts and circumstances of the

case and also the judgment passed by the Division Bench of Chattisgarh High

Court coupled with the object of Juvenile Justice Act as well as the specific

affidavit filed by the father of the revisionist, this Court deems it appropriate

to allow the revision. Accordingly, the revision is allowed and custody of the

revisionist be handed over to the father of the revisionist who is further

directed to take proper care of his child.

Consequently, the order impugned dated 10.05.2021 passed by the

Juvenile Justice Board, Datia on the bail application of the delinquent

juvenile in conflict with law and the impugned judgment and order dated

04.06.2021 passed by the learned Special Judge (POCSO Act), 2012, Datia,

in Criminal Appeal No.36 of 2021 are hereby set aside and the prayer made

for grant of bail to the delinquent juvenile through his father who is natural

guardian is allowed.

Let the revisionist Gaurav Yadav through his natural guardian/father be

released on bail in Crime No. 33 of 2021 offences under Sections 302, 294

and 34 of IPC and Sec. 3(2)(V) of SC/ST (Prevention of Atrocities) Act,

HIGH COURT OF MADHYA PRADESH\\ CRR-1403-2021 (GAURAV YADAV THR. NATURAL GUARDIAN (FATHER) AWDHESH YADAV Vs THE STATE OF MADHYA PRADESH)

Police Station Kotwali, District Datia, on his father furnishing a personal

bond of Rs.50,000/- with two solvent sureties of his relatives each in the like

amount to the satisfaction of the Juvenile Justice Board, Datia with an

undertaking that in case the delinquent juvenile is released on bail and is

given in his custody he will not create any situation which will bring the

delinquent juvenile into association with any known criminal or expose to

him moral, physical and psychological danger or any situation when the

delinquent juvenile may repeat the offence in question and he will work for

improvement of the delinquent juvenile.

Accordingly, the revision is allowed and disposed of.

This order will remain operative subject to compliance of the

following conditions by the revisionist :-

1. The revisionist will comply with all the terms and conditions of the

bond executed by him;

2. The revisionist will cooperate in the investigation/trial, as the case

may be;

3. The revisionist will not indulge himself in extending inducement,

threat or promise to any person acquainted with the facts of the case so as to

dissuade him from disclosing such facts to the Court or to the Police Officer,

as the case may be;

4. The revisionist shall not commit an offence similar to the offence of

which he is accused.

5. The revisionist will not seek unnecessary adjournments during the

trial; and

HIGH COURT OF MADHYA PRADESH\\ CRR-1403-2021 (GAURAV YADAV THR. NATURAL GUARDIAN (FATHER) AWDHESH YADAV Vs THE STATE OF MADHYA PRADESH)

6. The revisionist will not leave India without previous permission of the

trial Court/Investigating Officer, as the case may be.

7. The revisionist will inform the concerned S.H.O. of concerned Police

Station about his residential address in the said area and it would be the duty

of the Public Prosecutor to send E-copy of this order to SHO of concerned

police station as well as Superintendent of Police, concerned who shall

inform the concerned SHO regarding the same.

In view of the COVID-19, jail authorities are directed that before

releasing the revisionist, medical examination of revisionist shall be

undertaken by the jail doctor and on prima facie, if it is found that he is

having the symptoms of COVID-19, then consequential follow up action

including the isolation/quarantine or any test if required, be ensured,

otherwise revisionists shall be released immediately on bail and shall be

given a pass or permit for movement to reach his place of residence.

E- copy of this order be provided to the revisionist and E-copy of this

order be sent to the trial Court concerned for compliance. It is made clear that

E-copy of this order shall be treated as certified copy for practical purposes in

respect of this order.

                                                     (Vishal Mishra)
LJ*/-                                                    Judge


         Digitally signed
         by LOKENDRA
         JAIN
         Date: 2021.07.08
         12:32:24 +05'30'