Bishnu Kumar @ Bishnu Paswan vs The State Of Bihar
2021 Latest Caselaw 1591 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                  CRIMINAL REVISION No 180 of 2021
  Arising Out of PS. Case No.-130 Year-2016 Thana- BHAGWANPUR District- Vaishali
======================================================

BISHNU KUMAR @ BISHNU PASWAN SON OF LATE MISHRI PASWAN Resident of Village - Muzaffarpur Malahi, PS - Bhagwanpur, Distt

- Vaishali.

... ... Petitioner/s Versus The State of Bihar ... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s   :        Mr Ranjan Kumar Singh, Advocate
For the Respondent/s   :        Ms Pushpa Sinha, APP

====================================================== CORAM: HONOURABLE MR JUSTICE MADHURESH PRASAD ORAL JUDGMENT Date : 22-03-2021 Heard learned counsel appearing for the petitioner and

learned Additional Public Prosecutor appearing for the State.

2 This revision petition has been preferred against the

order dated 04.09.2017 passed by the learned Principal Magistrate,

Juvenile Justice Board, Vaishali at Hajipur and order dated

06.12.2017 passed by the Additional Sessions Judge I -cum-

Special Judge, Vaishali at Hajipur in Criminal Appeal No 85 of

2017 arising out of Bhagwanpur Police Station (for brevity, PS)

Case No 130 of 2016 registered under Sections 363, 302, 376D,

201 of the Indian Penal Code (for brevity, IPC) and Sections 4, 6,

8 and 10 of Protection of Children from Sexual Offences Act.

3 The above stated Bhagwanpur PS Case No 130 of

2016 was initially registered against unknown for the offences

punishable under Section 363 of IPC on the basis of written report

of the informant, who claimed that his grand-daughter aged about Patna High Court CR. REV. No.180 of 2021 dt.22-03-2021

4 years was missing since 05.08.2016. Subsequently, the dead

body of victim was recovered after 3-4 days from behind the

Bathan of the petitioner and, accordingly, Section 302 and other

sections were added. The prosecution witnesses as well as police

claimed that the petitioner as well as co-accused Kundan Kumar

were apprehended and confessed their guilt disclosing that they

not only raped, but also committed murder of deceased.

4 The petitioner was remanded in the above stated case

on 10.08.2016 and after remand, he claimed himself to be juvenile.

The Juvenile Justice Board conducted the inquiry to ascertain the

age of the petitioner and subsequently, the petitioner was found

below 18 years of age, but taking the seriousness and nature of the

offence, the Juvenile Justice Board referred the matter to the

Children Court for trial. The petitioner moved before the Juvenile

Justice Board for bail, but his prayer for bail was rejected by the

Juvenile Justice Board vide order dated 04.09.2017 and

subsequently, the petitioner preferred Criminal Appeal No 85 of

2017 for grant of bail, but the appeal was too rejected by the

Additional Sessions Judge I -cum- Special Judge, Vaishali at

Hajipur vide order dated 06.12.2017.

5 Learned counsel appearing for the petitioner submits

that there is no cogent evidence against the petitioner except Patna High Court CR. REV. No.180 of 2021 dt.22-03-2021

suspicion as well as so called confessional statement that too,

before the police. He further submits that the petitioner has been

implicated in this case due to village politics and land dispute and

moreover, petitioner does not have any criminal antecedent and

there is nothing on the record to show that the release of the

petitioner shall bring him into the association of known criminals

nor there is anything to show that the release of the petitioner shall

expose morally, physically or psychologically.

6 The learned Additional Public Prosecutor refuted the

above stated submissions pointing out that the dead body of victim

was recovered from behind the Bathan of the petitioner and when

the sniffer dog was pressed in service, the said sniffer dog entered

into the Bathan of the petitioner and subsequently, co-accused

Kundan Kumar as well as this petitioner were arrested and they

confessed their guilt.

7 Having heard the contentions of the parties, I went

through record as well as case diary. Admittedly, the case was

initially lodged against unknown persons meaning thereby, none

had seen the petitioner and his associate taking away the victim

from her Bathan. The perusal of entire case diary goes to show that

not a single prosecution witness claimed to have seen the

petitioner along with victim girl and except the so called Patna High Court CR. REV. No.180 of 2021 dt.22-03-2021

confessional statement of petitioner and co-accused that too before

police as well as suspicion, there appears to be nothing against the

petitioner, who is in jail custody for more than four years and

seven months without any substantive progress in his trial. Co-

accused Kundan Kumar has already been granted bail by this

Court in Cr Revision No 1204 of 2018 on 22.05.2020.

8 Section 12 of the Juvenile Justice (Care and Protection

of Children) Act, 2015 (for brevity, the Act) makes the provision of

bail to a child in conflict with law. The bail of a child in conflict

with law is a rule and rejection is an exception. No doubt the

proviso of Section 12 of the Act says that the child in conflict with

law shall not be released on bail, if there is likelihood to bring the

aforesaid child conflict with law into association with known

criminals or expose him to moral, physical or psychological

danger or the person's release would defeat the ends of justice.

9 In the present case, there is nothing on the record to

show that the release of petitioner shall bring him into the

association of the known criminals. Admittedly, the petitioner does

not have any criminal antecedent nor there is anything to show that

prior to his remand, he was in association with known criminals.

Similarly, also there is nothing on the record to show that the

release of the petitioner shall expose him morally, physically or Patna High Court CR. REV. No.180 of 2021 dt.22-03-2021

psychologically in danger. So far ends of justice is concerned, the

petitioner is admittedly cooling his heels in observation home for

more than four years and seven months. This Court's attention has

also been drawn towards the order dated 22.05.2020 passed by this

Court in Cr Revision No 1204 of 2018 whereby co-accused

Kundan Kumar has been granted bail taking note of the fact that

only five prosecution witnesses out of sixteen could be examined.

It is submitted by the petitioner's counsel that there is hardly any

progress at the trial thereafter, as the Courts have been functioning

in a very limited manner on account of COVID - 19 Pandemic.

Therefore, the aforesaid fact goes to show that in view of Section

12 of the Act, the petitioner should be released on bail.

10 No doubt, serious allegation of rape and murder has

been levelled against the petitioner and other accused, but in

course of hearing, learned counsel for the petitioner drew my

attention towards post mortem report of deceased and submits that

the post mortem report of deceased negates the story of rape.

11 Considering the aforesaid facts and circumstances as

well as submissions of the parties, in my view, this revision

petition does have merit and should be allowed.

12 Accordingly, the impugned order dated 04.09.2017

passed by the learned Principal Magistrate, Juvenile Justice Board, Patna High Court CR. REV. No.180 of 2021 dt.22-03-2021

Vaishali at Hajipur and order dated 06.12.2017 passed by the

Additional Sessions Judge I -cum- Special Judge, Vaishali at

Hajipur in Criminal Appeal No 85 of 2017 arising out of

Bhagwanpur PS Case No 130 of 2016 are hereby set aside. The

petitioner is directed to be released on bail on his furnishing bonds

of Rs10,000/- (Rupees Ten Thousand) with two sureties of the like

amount each to the satisfaction of the learned Additional Sessions

Judge I -cum- Special Judge, Vaishali at Hajipur in connection

with Criminal Appeal No 85 of 2017 arising out of Bhagwanpur

PS Case No 130 of 2016, subject to condition that one of the

sureties must be mother of the petitioner, who shall give an

undertaking before the trial Court that she shall keep strict vigil

over the activities of the petitioner and shall produce him before

the trial Court whenever and wherever is required by the trial

Court.

13 In the aforesaid manner, this revision petition stands

disposed of.

(Madhuresh Prasad, J) M.E.H./-

AFR/NAFR                  NAFR
CAV DATE                    NA
Uploading Date          23.03.2021
Transmission Date       23.03.2021