Patna High Court
Chandan Kumar Rajbhar @ Chandan ... vs The State Of Bihar on 10 August, 2023
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.4226 of 2022
Arising Out of PS. Case No.-88 Year-2022 Thana- ITARHI District- Buxar
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XX
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Sanjay Kumar, Adv.
For the Respondent/s : Mr. Sadanand Paswan, Spl. P.P.
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CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR
ORAL JUDGMENT
Date : 10-08-2023
Heard Mr. Sanjay Kumar, learned counsel for the
appellant and Mr. Sadanand Paswan, learned Special Public
Prosecutor for the State.
2. Though, the appellant has given full description in
the appeal, it would be inappropriate to disclose his identity in
view of the statutory provisions prescribed under Section 74 of
the Juvenile Justice (Care and Protection of Children) Act, 2015.
He is being referred to in the cause title as "XX".
3. Registry while uploading the order on the website
shall also ensure that the cause title is reflected in similar
manner
4. The appellant has filed the present appeal under
Patna High Court CR. APP (SJ) No.4226 of 2022 dt.10-08-2023
Section 101(5) of the Juvenile Justice (Care and Protection of
Children) Act, 2015 (for short 'The Act, 2015') challenging the
order dated 20.10.2022 passed by the learned Additional
District and Sessions Judge-I-cum-Special Judge (SC/ST &
Children Court), Buxar in Child Case No. 16 of 2022 arising out
of Itarhi P.S. Case No. 88 of 2022 dated 21.03.2022 registered
under Sections 302/34 of the Indian Penal Code and Section
3(2)(v) of the Scheduled Castes and Scheduled Tribe
(Prevention of Atrocities) Act, 1989 whereby the application for
bail of the appellant, who is in custody since 19.04.2022 was
rejected.
5. The prosecution case, in brief, is that on
19.03.2022, while the informant was returning from Barkagaon
village, his motorcycle touched the hand of one Buddu Kumar,
upon which an altercation took place but he pacified the matter.
Later on, when the informant came to know about the fight
between the accused persons and his brother, he rushed there
and found that the accused persons including the appellant are
assaulting his brother and they slated him by taking caste name
and lastly drowned him to death in the pond.
6. During the course of investigation, the appellant
claimed himself to be a juvenile and after separating his case,
Patna High Court CR. APP (SJ) No.4226 of 2022 dt.10-08-2023
the same was sent before the Juvenile Justice Board, Buxar on
07.07.2022.
7. Upon examination of testimonial produced by the
appellant and the medical report, the Juvenile Justice Board,
Buxar determined the age of the appellant as 17 years 6 months
and 26 days on 19.03.2022, the date on which occurrence had
taken place. Accordingly, vide order dated 08.09.2022 passed by
the Juvenile Justice Board, Buxar, the appellant was declared
juvenile in conflict with law.
8. Subsequently, the Juvenile Justice Board, Buxar
conducted preliminary assessment to assess the appellant's
mental and physical ability to understand the consequences of
the offence and the circumstances in which he had allegedly
committed the offence.
9. After preliminary assessment made under Section
15 of the Act of 2015, the Juvenile Justice Board, Buxar
determined that since the appellant had committed a heinous
offence and he is above the age of 16 years but below the age of
18 years, his trial was fit to be transferred to the Children's
Court. Accordingly, the Board transferred the entire record of
the case to the court of Special Judge (POCSO), Buxar for trial
of the appellant as an adult.
Patna High Court CR. APP (SJ) No.4226 of 2022 dt.10-08-2023
10. Learned counsel for the appellant by assailing the
impugned order submits that the ground for rejection as has
been shown in the impugned order is only that the appellant is
found to be addicted with smoking and living in a bad company.
Vide order dated 05.05.2023, a xerox copy of the case diary,
social background report as well as social investigation report
was called for from the court below. A perusal of the same, it
would appear that there is no adverse remark against the
appellant, inasmuch as he has been incarcerated for a period of
about one year and four months.
11. On the other hand, learned Special Public
Prosecutor for the State vehemently opposes the prayer for bail
of the appellant and submits that there is clear finding of the
learned Special Judge that there is a chance that the release of
the appellant would likely to bring him into association with
other known criminals or expose him to moral, physical and
psychological danger and would defeat the ends of justice.
12. Having heard the learned counsel for the parties
and taking note of the social investigation report as well as the
social background report, this Court finds that there is no
adverse remark against the appellant and further the
presumption of innocence of the child cannot be ruled out, that
Patna High Court CR. APP (SJ) No.4226 of 2022 dt.10-08-2023
apart the best interest repatriation and restoration of child must
be taken care of.
13. Further, a Division Bench of this Court in Lalu
Kumar & Ors. vs. The State of Bihar & Ors.[2019(4) PLJR
833], has held that seriousness and gravity of the offence alleged
cannot be made a ground for rejecting bail under the Act of
2015.
14. Accordingly, the impugned order dated
20.10.2022 passed in Child Case No. 16 of 2022 by the learned
Additional District and Sessions Judge-I-cum-Special Judge
(SC/ST & Children Court), Buxar in Itarhi P.S. Case No. 88 of
2022, is set aside.
15. The appellant is directed to be released on bail on
furnishing bail bond of Rs.10,000/-(ten thousand) with two
sureties of the like amount each to the satisfaction of learned
Additional District and Sessions Judge-I-cum-Special Judge
(SC/ST & Children Court), Buxar in Itarhi P.S. Case No. 88 of
2022, subject to the condition that one of the bailors will be
father/mother of the appellant who will file an affidavit giving
an undertaking to the effect that he will take proper care of good
behaviour and child's (appellant's) well being and will not allow
him to go in the company of bad elements.
Patna High Court CR. APP (SJ) No.4226 of 2022 dt.10-08-2023
16. The appeal stands allowed.
rohit/- (Harish Kumar, J)
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 11-08-2023
Transmission Date 11-08-2023
