Patna High Court
Nitesh Kumar vs The State Of Bihar on 14 December, 2023
Author: Chandra Shekhar Jha
Bench: Chandra Shekhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.2156 of 2023
In
CRIMINAL REVISION No.895 of 2022
Arising Out of PS. Case No.-83 Year-2022 Thana- KATIHAR MUFFASIL District- Katihar
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X-1, son of Santosh Sharma @ Fuddu Sharma through under the guardianship
of mother namely Jooniya Devi, D/o Viru Sharma and wife of Santosh
Sharma @ Fuddu Sharma, R/o Village-Rakasha, P.S.-Muffasil, District-
Katihar.
... ... Appellant
Versus
The State of Bihar
... ... Respondent
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Appearance :
For the Appellant/s : Mr. Suresh Prasad Sah @ Baranwal, Advocate
For the Respondent/s : Mr. Narendra Kumar Singh, APP
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CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
ORAL JUDGMENT
Date : 14-12-2023
Heard learned counsel appearing on behalf of the
appellant and learned APP appearing on behalf of the State.
2. The present appeal is being preferred against the
order dated 04.11.2022 passed by learned Additional Sessions
Judge-1st-cum-Children Court, Katihar in G.R. 2158 of 2022
arising out of Muffasil P.S. Case No.83 of 2022 by which the
learned Court has refused to enlarge the appellant on bail in a
case registered for offences punishable under Section 376 of the
Indian Penal Code.
3. The Child in conflict with law (for short
'CICL')/appellant, aged about 17 years 01 month and 02 days
on the alleged date of occurrence i.e. 16.05.2022, is named in
Patna High Court CR. APP (SJ) No.2156 of 2023 dt.14-12-2023
F.I.R. and is in observation home since 18.05.2022.
4. The allegation against the CICL/appellant is to
commit rape upon daughter of informant aged about 10 years
while she was playing inside her home after taking her to a
nearby primary school.
5. Learned counsel appearing on behalf of the
appellant submitted that even as per the FIR, appellant/CICL is
aged about 15 years, whereas on the basis of determination of
age by Juvenile Justice Board, the age of CICL/appellant was
found 17 years 01 month and 02 days on the date of occurrence.
It is submitted that the implication of the appellant is out of
neighbourhood dispute. Learned counsel further pointed out that
the learned Executive Magistrate, who recorded the statement of
victim under section 164 of the CrPC on 26.05.2022 clearly
indicate that victim was not in a position to reply even simple
question/queries related to her domestic affairs, suggest prima
facie that she was mentally challenged. It is further pointed out
that upon medical examination, no injury was noticed on her
private part. Learned counsel also pointed out that the appellant
was not examined in terms of Section 53-A of the Code of
Criminal Procedure (for short 'CrPC') despite of the fact that
the appellant was arrested immediately after the occurrence.
Patna High Court CR. APP (SJ) No.2156 of 2023 dt.14-12-2023
While concluding argument, it is submitted that the
investigation of the case has been completed and, as such,
charge-sheet has been submitted, there is no chance of
tampering with the evidence.
6. Learned counsel appearing on behalf of the
appellant submitted that mother of the juvenile-appellant is
ready to stand as a surety and furnish an undertaking that she
will take care of the appellant and shall ensure that he would not
fall in bad company and would take all possible care to connect
him with the mainstream of the society.
7. Learned APP for the State while opposing the
prayer for bail submitted that there is specific allegation against
the appellant/CICL as to commit rape upon the daughter of
informant.
8. Having regard to the submissions and
materials showing that the appellant has been adjudged juvenile
aged about 17 years 01 month and 02 days on the alleged date
of occurrence, and also as appellant has remained in the
Observation Home since 18.05.2022 and his mother is ready to
stand as a surety and furnish an undertaking that if released on
bail she will take care of the appellant and shall ensure that he
does not fall in bad company and, in case, the petitioner
Patna High Court CR. APP (SJ) No.2156 of 2023 dt.14-12-2023
indulges in any unlawful act, she will inform it to the
jurisdictional police station as also following the spirit of
section 12 of the Juvenile Justice (Care and Protection of
Children) Act, 2015 and in view of the exceptions carved out by
the Hon'ble Division Bench of this Court in the case of Lalu
Kumar and Ors. Vs. The State of Bihar reported in 2019 (4)
PLJR 833 that classification of the offences under the bailable
and non-bailable sections would not be relevant for the purpose
of grant of bail to a juvenile and the prayer for bail of a juvenile
may be rejected only under one of the three conditions, which
are as under:-
"(i) The release is likely to bring that person into
association with any known criminal;
(ii) The release is likely to expose the said person
to moral or physiological danger; and
(iii) The release would defeat the ends of justice."
9. The probation report, which was called vide
order dated 10.02.2023 is available on record. On perusal of
the said report, it appears that the mental level of
CICL/appellant is appearing as a child. In the said report,
nowhere mentioned that CICL/appellant cannot be reformed as
to rejoin the main stream of society.
Patna High Court CR. APP (SJ) No.2156 of 2023 dt.14-12-2023
10. Having regard to the submissions made by the
parties and taking into consideration the materials on record as
well as the period of incarceration of the appellant/CICL and in
the best interest of CICL, this Court is of the considered view
that the impugned order passed by the court below is not in
consonance with the aims and objectives of the Act.
11. In view of the aforesaid facts and
circumstances, as appellant/CICL found 17 years and one
month on the date of occurrence, where the victim girl fails to
name the petitioner during recording her statement under
Section 164 of the CrPC, coupled with the fact that charge-
sheet has already been submitted, where in social investigation
report nowhere suggest that CICL/appellant cannot be reformed
in future as to join the main stream of society, accordingly, the
order dated 04.11.2022 passed by learned Additional District
Judge-1st-cum-Children Court, Katihar, in G.R. 2158 of 2022
arising out of Muffasil P.S. Case No.83 of 2022 is hereby set
aside.
12. The appeal is allowed.
13. Let the appellant, named-above, be released
on bail on furnishing bail bond of Rs.25,000/- (Rupees Twenty-
five Thousand only) with two sureties of the like amount each to
Patna High Court CR. APP (SJ) No.2156 of 2023 dt.14-12-2023
the satisfaction of learned Additional District Judge-1st-cum-
Children Court, Katihar in connection with G.R. 2158 of 2022
arising out of Muffasil P.S. Case No. 83 of 2022 on the
following conditions:-
(i) That one of the sureties should be the
mother of the appellant; and
(ii) That the mother of the appellant
shall file an affidavit before the learned
Juvenile Justice Board, Katihar giving specific
undertaking that after release of the appellant
on bail, she will take proper care of the
appellant and will not allow him to fall into bad
company.
(Chandra Shekhar Jha, J.)
Sanjeet/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 18.12.2023
Transmission Date 18.12.2023
