Madhya Pradesh High Court

A S/O B vs The State Of Madhya Pradesh on 16 June, 2023

Author: Dinesh Kumar Paliwal

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      IN THE HIGH COURT OF MADHYA PRADESH
                               AT JABALPUR
                                 BEFORE
       HON'BLE SHRI JUSTICE DINESH KUMAR PALIWAL
                 CRIMINAL REVISION NO.1212 OF 2023
BETWEEN:-
A S/O B, THROUGH B W/O C (IN
OBSERVATION HOME) AGED ABOUT 42
YEARS,    R/O     VILLAGE      BHOGANWA,
TAHSIL PUNASA DISTRICT KHANDWA
(MADHYA PRADESH)
                                                       ......APPLICANT
(BY SHRI SANDEEP MAHAWAR - ADVOCATE)


AND


THE   STATE      OF   MADHYA     PRADESH
THROUGH             POLICE       STATION
MANDHATA,         DISTRICT      KHANDWA
(MADHYA PRADESH)
                                                       ...RESPONDENT
(BY SHRI ANOOP SONKAR - PANEL LAWYER)
.........................................................................................................................................................

Reserved on     : 09.05.2023
Pronounced on : 16.06.2023
.........................................................................................................................................................

      This petition having been heard and reserved for orders, coming on
for pronouncement this day, the Court pronounced the following:
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                                 ORDER

This criminal revision has been preferred under Section 102 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as "J.J. Act, 2015") against the appeal judgement dated 22.12.2022, passed by the Additional Sessions Judge to the Court of 1 st Additional Sessions Judge, Khandwa in Criminal Appeal No.222/2022, arising out of Crime No.474/2022 of P.S Mandhata, District Khandwa under Section 302, 294, 34 of IPC, whereby the appellate Court has rejected the appeal and affirmed the order dated 09.12.2022, passed by the Principal Magistrate, Juvenile Justice Board, Khandwa rejecting the bail application of juvenile which was filed by the uncle (Fufa) under Section 12 of the "J.J. Act 2015" in Crime No.474/2022, under Section 294, 302, 34 of IPC.

2. Learned counsel for the applicant has submitted that at the time of commission of offence, juvenile was below 18 years of age. He was 17 years and 3 months old at the time of incident. As per the educational certificate, date of birth of juvenile is 09.08.2005. He has no criminal antecedents. It is further submitted that as per the FIR, deceased had altercation with Ravi. It is further alleged that after sometime Ravi along with present applicant/juvenile came and they both beat Lokendra Karjare by means of kicks and fists and also forcibly laid him on the earth. In the meantime, Ravi's father Sewakram, his mother Shantabai, his brother Bablu and Juvenile in conflict with law's father Tarachand (Chhotu) also reached there and they too beat Lokendra by means of kicks and fists.

Lokendra was seen in injured condition by Ajay Karjale and Ganesh Bhaskale. They took him to hospital, where he was declared "brought dead". It is further submitted that the only allegations against the delinquent juvenile is that he along with main accused Ravi beat up the deceased by means of kicks and fists. He had not used any lethal weapon in commission of offence. It is further submitted that there is no evidence to show that if delinquent juvenile is released on bail, his 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 will defeat the ends of justice. No such findings were recorded as to how he will come in contact with known criminals and how he will be exposed to moral, physical, or psychological danger or his release would defeat the ends of justice. The juvenile in conflict with law is in custody since 30.11.2022.

3. Learned counsel for the applicant has further submitted that juvenile has not committed any offence and he has no criminal antecedents, except the present one. He is not a previous convict and is not associated with any kind of criminal activities. There is no record regarding any previous criminal antecedents of the family of the applicant and there is no chance of juvenile's re-indulgence or to bring him into association with the known criminal. The uncle (Fufa) of the applicant is ready to give an undertaking that if juvenile delinquent is released on bail, he will keep him in his custody and look after him properly and has assured on behalf of the juvenile that he is ready to cooperate with the process of law and shall make the juvenile available before the Juvenile Justice Board whenever required and is ready to accept all the conditions

whatsoever imposed by the Court upon him. It is further submitted that father and all other family members of the juvenile are in jail. Therefore, his uncle has filed application for taking him into custody . It is further submitted that Juvenile Justice Board as well as appellate Court have not properly appreciated the Social Investigation Report of the Probationary Officer in its right perspective and passed the impugned order and appeal judgement in a cursory manner without considering the object of the law enacted for the benefit of the Juvenile and have refused to release the applicant on bail. It is submitted that a perusal of the impugned orders demonstrates that same has been passed on flimsy ground which have occasioned gross miscarriage of justice. The judgement and order passed by the learned Courts below are erroneous and bad in law and are based on erroneous appreciation of facts.

4. On the other hand, learned Panel Lawyer for the respondent/State has supported the impugned judgment and orders passed by the Courts below and has submitted that juvenile has committed a heinous offence in a pre-planned manner and murder has been committed by the juvenile along with the main accused Ravi and other co-accused persons. There is every possibility that if juvenile is released, he may come into contact with the known criminals and may get expose to moral, physical, or psychological danger. Therefore, it is prayed that considering the gravity of the offence, present criminal revision filed by the uncle of the juvenile be rejected.

5. I have carefully considered the submissions made by learned counsel for the applicant and learned Panel Lawyer for the State and perused the material available on record.

6. It is undisputed that date of birth of the juvenile in conflict with law is 09.08.2005 and as such it is apparent that at the time of commission of offence he was almost 17 years and 3 months old on the basis of the age mentioned in the mark sheet-cum-certificate. The bail application under Section 12 of the J.J. Act 2015 has been rejected by the Courts below observing that murder has been committed by the juvenile along with co- accused persons. His parents are in jail. As he along with co-accused persons had caused fatal injuries to the deceased by means of kicks and fists that shows that he is of violent and aggressive nature and he can repeat the commission of offence. Therefore, the possibility of recurrence of offence after his release which is likely to bring him into association with other known criminals cannot be ruled out. The courts below on the basis of above findings have dismissed the application.

7. Before considering the legality, correctness and propriety of the order passed by the Courts below. It would be useful to look at the relevant provision of the Act. 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 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 fulfill 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."

8. Provisions of Section 12 of "J.J. Act, 2015" manifest that ordinarily, the Juvenile Justice Board is under obligation to release the juvenile on bail with or without surety. The juvenile shall not be released in certain circumstances as the latter part of the section also uses the word 'shall' imposing certain mandatory conditions prohibiting the release of the juvenile by the J.J. Board. If there are any reasonable grounds for believing;

(a) that the release is likely to bring him into association with any known criminal; (b) that release is likely to expose him to moral, physical, or psychological danger and (c) that release of the juvenile is in conflict with law and would defeat the ends of justice.

9. From a bare reading of the provisions of Section 12 of "J.J. Act, 2015", it appears that the intention of the legislature is to grant bail to the juvenile irrespective of the nature or gravity of the offence alleged to have been committed by the juvenile, and bail can be declined only in such cases where there are reasonable grounds to believe that the release is likely to bring the juvenile into an association of any known criminal or expose him to moral, physical, or psychological danger, or that his release would defeat the ends of justice. 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 if any of the three contingencies specified under Section 12(1) of "J.J. Act, 2015" is available.

10. In case of "Narayan Sharma Vs. State of MPILR (2012) MP 796 A Coordinate Bench of this Court while considering the provision of the Section 12 of the Act observed as under:-

"In the opinion of this court, the Juvenile Justice Board may be justified in denying bail to a juvenile involved in a heinous crime only if there is material before it to form a prima facie opinion on the aspects carved out as exception to rule of bail in section 12 of the Act it self. There must be some mechanism with the Juvenile Justice Board to gather material and form an opinion as to whether the juvenile need to be denied bail by bringing his case under the exceptions to bail engrafted in Section 12. The opinion to be formed by the Board, by no means, can be subjective and

has to be objective. Either the prosecution should place some prima facie material before the Board or the Court to show that release of a juvenile on bail may expose him to moral, physical or psychological danger of the Board may obtain a report from the Probation Officer attached to the Board regarding antecedents and circumstances attended to the juvenile, both pre and post crime and it is only thereafter the Board or the Court should crystallized its opinion regarding release or non release of the juvenile on bail, though involved in a heinous crime. A reference to the statutory provisions governing bail to a juvenile contained in section 12 would show that there is a mandate of law that the juvenile has to be released on bail, except only in those cases where the case fall in one or the other exception engrafted by the legislature in section 12 itself."

11. It has been observed in Pratap Singh Vs. State of Jharkhand & another 2005 SCC (Criminal) 742, that:-

"the whole object of the Act is to provide for the care, protection, treatment, development and rehabilitation of neglected delinquent juveniles. It is a beneficial legislation aimed at to make available the benefit of the Act to the neglected or delinquent juveniles. It is settled law that the interpretation of the Statute of beneficial legislation must be to advance the cause of legislation to the benefit for whom it is made and not to frustrate the intendment of the legislation.

12. Further it has been observed in Sanjay Chaurasia Vs. State of U.P. and another 2006 (55) SCC 480 that:-

"10. In case of the refusal of the bail, some reasonable grounds for believing above mentioned xx exceptions must be brought before the court concerned by the prosecution but in the present case, no such ground for believing any of the above mentioned exception has teen brought by the prosecution before the Juvenile Justice Board and appellate court. The

appellate court dismissed the appeal only oh the presumption that due to commission of this of fence, the father and other relatives of other kidnapped boy had developed enmity with the revisionist, that is why in case of his release, the physical and mental life of the revisionist will be In danger and his release will defeat the ends of justice but substantial to this presumption no material has been brought before the appellate court and the same has not been discussed and only on the basis of the presumption, Juvenile Justice Board has refused the bell of the revisionist which is In the present case is unjustified and against the spirit of the Act."

13. Coordinate Benches of this Court in case of Karan Vs. State of MP in Cr.R. No. 5159/2018 decided on 14.01.2019 and Girdhar Vs. State of MP in Cr.R. No. 509/2021 decided on 17.03.2021 has held that the bail application of a child in conflict with the law cannot be rejected merely on the ground of seriousness of the crime. The only exception to grant of bail to a child in conflict with the law is the reasonable ground for believing that release would bring him into association with any known criminal or expose him to moral, physical or psychological danger or his release would defeat the ends of justice.

14. Section 13(1)(ii) of "JJ Act, 2015" provides that the Probation Officer shall submit a social investigation report within two weeks from when a child is apprehended or brought to the Board, containing information regarding the antecedents and family background of the child and other material circumstances likely to be of assistance to the Board for making the inquiry. The "social investigation report" which has been defined in Rule 2(xvii) of The Juvenile Justice (Care and Protection of Children) Model Rules, 2016, means the report of a child containing detailed information

pertaining to the circumstances of the child, the situation of the child on economic, social, psycho-social and other relevant factors, and the recommendation thereon. This report becomes important for the inquiry to be done by the Board while passing such orders in relation to such a child as it deems fit under Sections 17 and 18 of this Act. The purpose behind this provision is to enable the Juvenile Justice Board to get a glimpse of the social circumstances of the child before any order regarding bail or of any other nature is passed.

15. 'Form-6' of the Model Rules, 2016, contains a detailed proforma of the social investigation report. The social investigation report submitted by Probation Officer and Child Welfare Officer and 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. Social Investigation Report (SIR) given by the Probation Officer is as under:

"अपचचाररी बचालक दचारचा गगंभरीर अपरचाध घटटित टकयचा गयचा अत : अपचचाररी बचालक कको बचाल सरगंक्षण ग्रह मम टनिरुद्ध करनिचा उटचत हकोगचा "

17. On a perusal of the aforesaid report, it is apparent that his conduct and behavior with the others is friendly and he has no criminal background. Only on the basis that he has committed heinous offence, it is recommended by the Probation Officer that he be committed to remand home. On a perusal of the report, it is apparent that no proper and detailed report, as required by the law has been submitted by the Probation

Officer. Thus, no inference can be drawn on the basis of the report furnished by the Probation Officer. This report is incomplete and not in accordance with the columns mentioned in the proforma.

18. In this case as per the FIR, on 29.11.2022 Gariba Borkare lodged a report stating that his grandson Lokendra aged about 35 years who was residing with him was blessed with parents, wife and children. On 29.11.2022, he was informed by Sadashiv Dangode that on 28.11.2022 at around 7:00 P.M. Lokendra was having eggs at the Komal's handcart. Ravi was also having eggs there. Some altercation had taken place between them. Thereafter, Ravi left the place, but after sometime, he returned along with Juvenile in conflict with law and they both beat up Lokendra with kicks and fists and also forcibly laid him on the earth and in the meantime, Ravi's father Sewakram, his mother Shantabai and brother Bablu and delinquent Juvenile's father Tarachand (Chhotu) also reached there and they also beat Lokendra by means of kicks and fists. Lokendra sustained injuries and fell down on earth. Ajay and Ganesh had seen the incident. They took him to the Sanawad Hospital, where he was declared "brought dead". In this case, FIR has been lodged on the next day of the incident by the grand father of the deceased on the basis of information given by Sadashiv Dangode. Thus, it is clear that though a named FIR has been lodged, but it has been lodged after one day of the incident.

19. In this case bail application of the applicant has been dismissed only on the ground that he has committed heinous offence, but in view of

the above discussion, the reasons and conclusion arrived at by the appellate Court as well as Juvenile Justice Board in the impugned judgement and order for dismissing the application for giving juvenile on supurdagi are not as per the intention of legislature and object of the J.J. Act, 2015. Thus, I am of the view that both the courts below have not properly appreciated the mandatory provisions of Section 12 of the J.J.Act, 2015. Therefore, I am of the considered view that the order dated 22.12.2022, passed by the Additional Sessions Judge to the Court of 1 st Additional Sessions Judge, Khandwa in Criminal Appeal No.222/2022, arising out of Crime No.474/2022 of P.S. Mandhata, District Khandwa under Section 302, 294, 34 of IPC and order dated 09.02.2022, passed by the Principal Magistrate, Juvenile Justice Board, Khandwa are not sustainable. Hence, the above orders are set aside and present criminal revision is allowed.

20. It is directed that juvenile in conflict with the law be released on bail in Crime No.474/2022 of Police Station Mandhata, Khandwa for commission of offence under Section 302, 294, 34 of IPC upon furnishing a personal bond of his Uncle (Fufa) or Mother of Rs. 1,00,000/- (Rupees One Lakh Only) with two solvent sureties of his relatives in the amount of the Rs.50,000/- (Rupees Fifty Thousand Only) each to the satisfaction of Juvenile Justice Board, Khandwa, subject to the following conditions:-

(1) During bail period, applicant/juvenile will remain in his supervision and control and he shall be responsible for his maintenance, well being and other activities.

(2) He shall undertake that upon release on bail, juvenile will not be permitted to go into contact or association with any known criminal or allowed to be exposed to any moral, physical, or psychological danger and further that he will ensure that the juvenile will not repeat the offence.

(3) Juvenile will report to the Probation Officer on the every last date of the calendar month and Probation Officer will keep a strict vigil on the activities of the juvenile and regularly draw up his social investigation report that would be submitted to the J.J. Board, on such a periodical basis as the Juvenile Justice Board may need it.

(4) He shall also ensure of the appearance of the Juvenile before J.J. Board on all the dates fixed by it till the final disposal of the case pending before it.