Orissa High Court
Rabindra Majhi @ Rabi vs State Of Odisha on 8 November, 2024
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.1298 of 2023
(An application under Section 102 of the Juvenile Justice (C & P)
Act, 2015)
Rabindra Majhi @ Rabi .... Appellant
-versus-
State of Odisha .... Respondent
Appeared in this case:-
For Appellant : Mr. Manas Kumar Chand,
Advocate
For Respondent : Mr. G. Mohanty,
Learned Standing Counsel
Mr. A.K. Sahoo, Advocate for the
informant
CORAM:
JUSTICE A.C. BEHERA
JUDGMENT
Date of hearing : 06.11.2024 / date of judgment : 07.11.2024
A.C. Behera, J. This is an appeal under Section 101(5) of the Juvenile
Justice (Care and Protection) Act, 2015 (in short „the JJ(C&P) Act,
2015), which has been preferred by the appellant(CICL) challenging the
rejection order of his bail passed on dated 16.08.2023 by the learned
Special Judge(POCSO)-cum-Additional Sessions Judge, Bhubaneswar in
C.T. No.220 of 2023.
2. The factual backgrounds of this appeal under Section 101(5) of the
J.J.(C&P) Act, 2015, which prompted the CICL for preferring the same
is that, he(CICL) was brought before the Principal Magistrate, Juvenile
Justice Board, Khordha on dated 11.04.2023 relating to his involvement
in an incident that, he(CICL) along with others had participated in that
incident on dated 10.04.2023 near his house and in such incident, one
person died. Thereafter, the said matter was reported at Nirakarpur
Police Station and on the basis of such report, Nirakarpur P.S. Case
No.95 of 2023 was registered by the police and the police proceeded
with that matter and brought the CICL and produced him(CICL) on
dated 11.04.2023 before the learned Principal Magistrate, Juvenile
Justice Board, Khordha, but, the learned Principal Magistrate, Juvenile
Justice Board, Khordha sent the CICL to the place of safety refusing his
prayer for bail. Then, the said matter was sent to the learned Special
Judge(POCSO)-cum-Additional Sessions Judge, Bhubaneswar, wherein
the same was registered as C.T. No.220 of 2023, The learned Special
Judge(POCSO)-cum-Additional Sessions Judge, Bhubaneswar also
refused the prayer for bail of the CICL on dated 16.08.2023 assigning
the reasons that,
"the allegations are grave and serious in nature and in case
of release of CICL on bail, there is yet likelihood of his
fleeing away from the justice and there is chance of his
interference with the witnesses in the matter."
So, the CICL challenged the said refusal order of his bail passed
by the learned Special Judge(POCSO)-cum-Additional Sessions Judge,
Bhubaneswar preferring this appeal under Section 101(5) of the J.J.
(C&P) Act, 2015.
3. I have already heard from the learned counsel for the appellant,
the learned Standing Counsel for the State and the learned counsel for
the informant.
4. During the course of hearing of this appeal, the learned counsel for
the (CICL/appellant) contended that, the CICL(appellant) has passed +2
Arts and he is very much interested for his higher study and there is no
material in the record to show that, his release on bail, shall bring
him(CICL/appellant) into association with any known criminal or shall
expose him to moral, physical and psychological danger, for which, the
learned Special Judge(POCSO)-cum-Additional Sessions Judge,
Bhubaneswar should not have refused his prayer for bail, to which,
learned Standing Counsel for the State and the learned counsel for the
informant countered stating that, the reasons assigned above by the
learned Special Judge(POCSO)-cum-Additional Sessions Judge,
Bhubaneswar for the refusal of bail of the CICL are not improper or
unreasonable, for which, there is nothing to interfere with the same.
5. As per the provisions of law envisaged in the proviso to Sub-
section(1) of Section 12 of the J.J.(C&P) Act, 2015, a CICL can be
denied with the privilege of bail, only if, the court of the opinion that,
(i) there appears reasonable grounds for
believing that, the release of CICL on bail shall
bring him into association with any known criminal
or
(ii) shall expose him to moral, physical and
psychological danger or that his such release would
defeat the ends of justice and
6. The necessary essentials/criterias indicated above in (i) and (ii) of
the proviso to Sub-section(1) of Section 12 of J.J.(C&P) Act, 2015 must
be there in the record to make out any of the above grounds out of two,
which may persuade the court not to release the CICL on bail.
7. As per the J.J.(C&P) Act, 2015, the nature and gravity of the
allegations has no significance or bearing in the matter of consideration
of bail of a CICL. So, a CICL has to be released on bail irrespective of
the nature and gravity of allegations, if the necessary criterias indicated
in the proviso to Sub-section(1) of Section 12 of the J.J.(C&P) Act, 2015
for the refusal of the same are not fulfilled.
8. The J.J.(C&P) Act, 2015 is a beneficial legislation, which has been
enacted / drafted to reform the child. The object of the J.J.(C&P) Act,
2015 is, to achieve the betterment of the child including CICL. It has a
reformative approach. If it is found that, the ends of justice would be
benefited or the, desired goals of the legislation can be achieved by
detaining a CICL in a Juvenile Home or place of safety, only in that case,
the bail of the CICL can be denied.
9. Therefore, as per the mandate of the provisions of Section 12 of
the J.J.(C&P) Act, 2015, a CICL has to be released on bail, irrespective
of the nature of allegations, because, bail for the CCL is the rule and
refusal is an exception. The right of privilege of bail of the CICL can be
denied, only on the basis of sufficient materials with clear and valid
reasons for the same, i.e., enlargement on bail to the CICL shall be
detrimental to the interest of the CICL or the refusal of his bail would
benefit the ends of justice.
10. On this aspect, the propositions of law has already been clarified
by the Hon‟ble Courts and Apex Court in the ratio of the following
decisions :-
(i) 2020(2) OJR-73(S.C.) : Exploitation of Children in
Orphanages in the State of Tamil Nadu vrs. Union of
India and others-- J.J.(C&P) Act, 2015-- Sections 10
& 12--Bail--The only embargo created for bail of the
CICL is that, (i) in case the release of the child likely
bring into association with known criminals or (ii)
expose the child to moral, physical or psychological
danger or where the release of the child would defeat
the ends of justice.
(ii) 2016(1) CLT Crl. (Supp.)-Criminal-17 : Pankaj
Kumar Malik vrs. State of Odisha-- J.J.(C&P) Act,
2015--Sections 12 & 53--Bail--Release on bail of the
CICL is a rule, but refusal is an exception, which can
only be done in the existence of circumstances
detrimental to the interest of the CICL or if the same
would defeat the ends of justice--Heinousness and
seriousness of an offence has got nothing to do in
consideration of the prayer for bail of the CICL.
(iii) 2016(4) Crime-78(Madras) : Vigneshwaran @
Vignesh Ram vrs. State-- J.J.(C&P) Act, 2015--
Section 12--Bail--So far as juveniles are concerned,
grant of bail is the rule and non-grant of bail is only an
exception.(Para-7)
(iv) 2016(4) Crime-188(Allahabad): Amit Yadav Alias
Monu Alias Bebo vrs. State of U.P. and Anr.--
J.J.(C&P) Act, 2000--Section 12--Bail--If there are
no imminent chances of his repeating the crime, bail to
a juvenile should not be ordinarily refused.
(v) 2009 Cr.L.J. : A Juvenile vrs. State of Orissa
2002(Orissa)
"A Juvenile needs parental protection and guidance to
bring him back to the main-stream of the society from
which he has strayed. Thus, his release on bail would
aid the ends of justice rather than defeat it."
(vi) Suo Motu Writ Petition(Civil) No.04 of
2020(S.C.)
The JJBS and Children‟s Court shall consider in
taking steps to release all children on bail, unless there
are clear and valid reasons for the application of the
proviso to Section 12 JJ(C&P)
Act, 2015 for the refusal of their bails.
(vii) 2013(3) Crimes-252(Chhatisgarh) : Ankit
Upadhyaya and others vrs. State of Chhatisgarh)--
J.J.(C&P) Act, 2015-- Section 12--Bail--When the
report of the P.O., i.e., social investigation report is
positive to the effect that, release of the CICL on bail
would be in his best interest, then, he(CICL) deserves to
be released on bail.
(viii) 2011(4) Crimes-204(Jharkhand) : Manish
Kumar vrs. The State of Jharkhand-- J.J.(C&P) Act,
2015-- Section 12--Bail--Bail to Juvenile is rule and
refusal is an exception.
When the case of the CICL does not come
within proviso to Section 12, then the CICL is deserved
for bail.
(ix) 2023(1) Crimes-406(Jharkhand) : Shahnawaz
Hussain vrs. The State of Jharkhand-- J.J.(C&P)
Act, 2015-- Section 12--Bail--When the CICL has no
criminal history and the possibility of the CICL in
coming with association of any known criminal is very
remote, then the CICL is to be granted on bail.
(x) CRR 53 of 2021(O&M) (P&H) : Vishvas vrs.
State of Punjab (dated on 08.02.2021) Para-16--J.J.
(C&P) Act, 2015--Section 12--Bail--An application
under Section 12 of the Act for bail of the CICL cannot
be decided without taking into consideration to the social
investigation report submitted by the probation officer.
11. Here, in this matter at hand, the bail of the CICL(appellant) has
been refused on dated 16.08.2023 in C.T. No.220 of 2023 by the learned
Special Judge(POCSO)-cum-Additional Sessions Judge, Bhubaneswar
on the grounds that,
"the allegations are grave and serious in nature and in case
of release of the CICL on bail, there is likelihood of his
fleeing away from the justice and chances of his
interference with the witnesses."
12. It is forthcoming from the copy of the social investigation report
submitted by the learned Standing Counsel for the State at the time of
hearing that,
"the CICL belongs to middle class family. He is an
average student and he usually spends his time in studies.
He has passed +2 Arts and interested for his higher studies
and his approach and behaviour is girlish in nature, for
which, he does not mix with boys, so, he has very less
number of friends in the locality and usually he spends lot
of time at home and he used to participate in drama and
danda nacha in the locality. He has no previous bad
conduct. He may have involved in the circumstances
without knowing the consequence thereof and he (CICL) is
worried about his carrier."
13. When the social investigation report as stated above does not
reveal that, "the CICL(appellant) was subjected to any form of abuse or
was a victim of any incident earlier at any point of time or he was with
any of his bad association earlier and when the said social investigation
report reveals that, he(CICL) always spends his time in his studies and he
is interested for his higher studies and he has not any bad associate in his
locality and he may have involved in the circumstances without knowing
the consequences thereof and when the said report does not reveal about
the possibility of his involvement with any incident in future after his
release on bail or there is any reasonable apprehension of his fleeing
away from the process of justice after his release on bail and when the
CICL is worried about his career and when the reasons assigned by the
learned Special Judge(POCSO)-cum-Additional Sessions Judge,
Bhubaneswar for the refusal of the bail of the CICL are not fulfilling any
of the criterias of the proviso to Sub-section(1) of Section 12 of the
J.J.(C&P) Act, 2015 and when the mother guardian of the CICL is
available in the house of CICL to look-after him(CICL) for the
betterment of his future and when the learned Special Judge(POCSO)-
cum-Additional Sessions Judge, Bhubaneswar has refused the bail of the
CICL(appellant) without taking into account to the social investigation
report submitted by the Probation Officer, Khordha, though as per law,
the bail of any CICL cannot be decided without taking into consideration
to the social investigation report and as such, when there are inherent
fundamental defects in the refusal order of bail of the CICL passed by the
learned Special Judge(POCSO)-cum-Additional Sessions Judge,
Bhubaneswar, at this juncture, in view of the principles of law enunciated
in the ratio of the decisions referred to (supra) in para no.10, the order of
refusal of bail of the CICL(appellant) passed on dated 16.08.2023 in C.T.
No.220 of 2023 by the learned Special Judge(POCSO)-cum-Additional
Sessions Judge, Bhubaneswar cannot be sustainable under law. For
which, there is justification under law for making interference with the
same through this appeal preferred by the CICL(appellant) under Section
101(5) of J.J.(C&P) Act, 2015.
14. Therefore, there is merit in the appeal of the appellant (CICL). The
same must succeed.
15. In result, the appeal preferred by the CICL (appellant) is allowed
on merit.
16. The impugned order dated 16.08.2023 passed in C.T. No.220 of
2023 by the learned Special Judge(POCSO)-cum-Additional Sessions
Judge, Bhubaneswar is set aside.
17. The prayer for bail of the CICL (appellant) is allowed.
18. The learned Special Judge(POCSO)-cum-Additional Sessions
Judge, Bhubaneswar is directed to release the CICL (appellant) on bail
with required bail bond/ bonds imposing lawful conditions as it deems fit
and proper with a compulsory condition that:-
the mother guardian of the CICL shall furnish an
undertaking that, she will not allow the CICL to come in
contact with his any bad association and the CICL shall not
indulge with any unlawful/illegal activities.
19. Accordingly, this appeal is disposed of finally.
Registry is directed to transmit the copies of this judgment to the
learned Special Judge(POCSO)-cum-Additional Sessions Judge,
Bhubaneswar in reference to C.T. No.220 of 2023 forthwith for
information and lawful compliances on the basis of this judgment.
( A.C. Behera )
Judge
Orissa High Court, Cuttack
The 7th of November, 2024/ Jagabandhu, P.A.
Designation: Personal Assistant
