Patna High Court
Aditya Kumar @ Bhutkun Patel @ Bhutkun vs The State Of Bihar on 30 January, 2024
Author: Chandra Shekhar Jha
Bench: Chandra Shekhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.4645 of 2023
Arising Out of PS. Case No.-718 Year-2022 Thana- CHAPRA TOWN District- Saran
======================================================
XXX
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
Appearance :
For the Appellant/s : Mr.Maheshwar Prasad, Advocate
For the Respondent/s : Mr.Abhay Kumar, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
ORAL JUDGMENT
Date : 30-01-2024
Heard learned counsel appearing on behalf of the
appellant/CICL and learned A.P.P. for the State.
2. The present appeal is being preferred against the
order dated 13.09.2023 passed by learned 1st Additional
Sessions Judge-cum-Children Court Judge, Saran at Chapra in
connection with Children Case No. 08/2023, Registration No.
08/2023 arising out of Chapra Town P.S. Case No. 718 of 2022
for the offence under Section 302, 201 and 34 of the Indian
Penal Code, by which the learned Court has refused to enlarge
the appellant/CICL on bail.
3. Learned counsel appearing on behalf of the
appellant/CICL submitted that the appellant/CICL is not named
in the First Information Report (in short the 'F.I.R.') and he is in
custody since 02.12.2022.
Patna High Court CR. APP (SJ) No.4645 of 2023 dt.30-01-2024
4. Learned counsel for the appellant/CICL submitted
that from the certified copy of letter dated 03.01.2024, which
has been placed and taken on record during course of hearing
itself, in terms of this Court's order dated 18.01.2024, it appears
that the age of the appellant/CICL is seventeen (17) years five
(5) months and seventeen (17) days on the date of occurrence.
5. Learned counsel submits that allegation against
appellant/CICL is to commit murder of son of the informant
along with other co-accused persons. It is submitted that name
of appellant/CICL has surfaced during course of investigation
and it appears first time while informant was recording his re-
statement, where it has been stated that he came to know from
one Hassain Khan that his deceased son was 'last seen' with the
appellant/CICL. It is submitted that save and except suspicion
arises out of 'last seen' nothing incriminating material surfaced
during the course of investigation which may connect the
appellant/CICL with the present occurrence of murder.
6. It is further pointed out from Social Investigation
Report (in short 'S.I.R.') that nothing appears adverse against
this appellant/CICL out of which it can be said that
appellant/CICL cannot join the mainstream of society after
getting him reformed in due course of time. It is submitted that
Patna High Court CR. APP (SJ) No.4645 of 2023 dt.30-01-2024
investigation of this case is completed and charge-sheet has
been submitted and, as such, there is no chances of tampering
with the evidence, if released on bail. The appellant/CICL is a
man of clean antecedent.
7. Learned counsel appearing on behalf of the
appellant/CICL submitted that father of the appellant/CICLis
ready to stand as a surety and furnish an undertaking that he will
take care of the appellant/CICL and shall ensure his studies as
well as that he would not fall in bad company and would take all
possible care to connect him with the mainstream of the society.
8. Learned counsel for the appellant/CICL relies upon
Section 3 (i), (iv), (v) & (xiv) of the Juvenile Justice (Care and
Protection of Children) Act, 2015 {hereinafter referred to as 'the
Act'} which is quoted hereinbelow:-
"(i) Principle of presumption of innocence:- Any child
shall be presumed to be an innocent of any mala fide or
criminal intent up to the age of eighteen years.
(iv) Principle of best interest:- All decisions regarding
the child shall be based on the primary consideration
that they are in the best interest of the child and to help
the child to develop full potential.
(v) Principle of family responsibility:- The primary
responsibility of care, nurture and protection of the
child shall be that of the biological family or adoptive
or foster parents, as the case may be.
(xiv) Principle of fresh start:- All past records of any
child under the Juvenile Justice system should be
erased except in special circumstances"
9. Learned counsel while referring to the above
Patna High Court CR. APP (SJ) No.4645 of 2023 dt.30-01-2024
mentioned provisions submits that as per the scheme of the Act,
there is presumption of innocence of a child in conflict with
law and all decisions regarding the child shall be taken in
consonance with the principle of best interest of the child.
Learned counsel further submits that the principle of family
responsibility and principle of fresh start have also been
recognized under the Act.
10. In reference to Section 12 of the Act, learned
counsel submits that bail to a child in conflict with law is a rule
and denial is exception.
11. Learned counsel in the aforesaid background
submits that the learned court below has failed to consider the
scheme of the Act and has committed material irregularity in
arriving at the conclusion that release of appellant/CICL would
bring him in association with bad elements of society.
12. Learned A.P.P. for the State fairly conceded that
the appellant/CICL is not named in the F.I.R., but it is pointed
out by him that as per S.I.R., his involvement with society may
be harmful.
13. Learned A.P.P. submits that from perusal of
Section 12 of the Act, it appears that bail is a matter of right to
the appellant/CICL and denial is exception as such this court
Patna High Court CR. APP (SJ) No.4645 of 2023 dt.30-01-2024
may consider to pass appropriate order in accordance with the
provisions of the Act for release the appellant on bail in the best
interest of the child.
14. The Division Bench of this Court in the case of
Lalu Kumar and Ors. Vs. The State of Bihar reported in 2019
(4) PLJR 833, while interpreting Section 12 of the Act, has laid
down the principle that the Board while considering the bail of a
juvenile is duty bound to follow the principle of 'best interest',
'repatriation' and 'restoration' of child. The gravity and nature
of offence are immaterial for consideration of bail of a juvenile.
As per Section 12 of the Act of 2015, an application for bail is
not decided by reference to classification of offences as bailable
or non-bailable under the Code of Criminal Procedure.
15. Having regard to the facts and circumstances of
the case and by taking note of the fact that as nothing
incriminating material surfaced against the appellant/CICL
during course of investigation as to connect him with the present
occurrence of murder of son of the informant except suspicion
arises out of 'last seen', where nothing adverse surfaced out of
S.I.R. to suggest that appellant/CICL cannot join the mainstream
of society, coupled with fact that charge-sheet has already been
submitted in the case and there is no chance that the
Patna High Court CR. APP (SJ) No.4645 of 2023 dt.30-01-2024
appellant/CICL would tamper with the evidences, if released on
bail, I am of the considered opinion that from the report of the
Juvenile Justice Board, Saran at Chapra, it appears that the age
of the appellant/CICL is seventeen (17) years five (5) months
and seventeen (17) days on the date of occurrence and further
taking into consideration the materials on record as well as the
period of incarceration of the appellant/CICL and in the best
interest of appellant/CICL, this Court is of the considered view
that the impugned order passed by the court below is not
sustainable in the eyes of law inasmuch as the same is not in
consonance with the aims and objectives of the Act.
16. In result, I am of the opinion that the learned
court below has committed material irregularity in arriving at
the conclusion that grant of bail to the appellant/CICL would
amount to defeating the ends of justice.
17. Accordingly, the order dated 13.09.2023 passed
by learned 1st Additional Sessions Judge-cum-Children Court
Judge, Saran at Chapra in connection with Children Case No.
08/2023, Registration No. 08/2023 arising out of Chapra Town
P.S. Case No. 718 of 2022 is hereby set aside.
18. The appeal is allowed.
19. Let the appellant/CICL, above named, be released
Patna High Court CR. APP (SJ) No.4645 of 2023 dt.30-01-2024
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 1st Additional Sessions Judge-cum-Children Court
Judge, Saran at Chapra in connection with Children Case No.
08/2023, Registration No. 08/2023 arising out of Chapra Town
P.S. Case No. 718 of 2022 on the following conditions:-
(i) that one of the bailors shall be the father of the
appellant/CICL.
(ii) that the father of the appellant/CICL shall file an
affidavit before the learned Juvenile Justice Board,
Saran at Chapra giving specific undertaking that after
release of the appellant/CICL on bail, he will take
proper care of the appellant and will not allow him to
fall into bad company.
(Chandra Shekhar Jha, J.)
Rajeev/-
AFR/NAFR
CAV DATE
Uploading Date 30.01.2024
Transmission Date 30.01.2024
