Patna High Court
Rakesh Rai vs The State Of Bihar on 17 January, 2025
Author: Jitendra Kumar
Bench: Jitendra Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.5154 of 2024
In
CRIMINAL REVISION No.512 of 2024
Arising Out of PS. Case No.-100 Year-2020 Thana- BAGENGOLA District- Buxar
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Rakesh Rai Son of Sanjay Rai Resident of Village - Pokhraha, P.S. -
Bagengola, District - Buxar
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
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Appearance :
For the Appellant : Ms. Bandana Sing, Advocate
Mr. Sudhir Kumar Singh, Advocate
For the State : Ms. Anita Kumari Singh, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE JITENDRA KUMAR
ORAL JUDGMENT
Date : 17-01-2025
The present Criminal Appeal has been preferred by
the appellant against the impugned order dated 01.11.2023
passed by the learned Additional Sessions Judge 1st cum Special
Judge SC/ST & Children Court, Buxar, in Adult Children Case
No. 14 of 2023 arising out of Bagengola P.S. Case No. 100 of
2020 whereby the learned court below has rejected the bail
petition of the appellant holding as follows:-
"Considering the aforesaid facts and
circumstances of this case and from perusal of case record,
including the Social Investigation Report, it is found that
the CICL "R" had been actively involved in this case and
during investigation it has come that CICL "R", had
Patna High Court CR. APP (SJ) No.5154 of 2024 dt.17-01-2025
committing the murder of father of informant in
connivance with other co-accused persons. The CICL "R"
has also associated with criminal activities and had a bad
company. Therefore, in the aforesaid circumstances there
is every chance for the CICL "R" that his release would
likely to bring him into association with other known
criminals or expose him to moral, physical and
psychological danger and his release would also defeat the
ends of justice. Hence the prayer of bail of CICL "R" is
hereby disposed off."
2. The prosecution case as emerging from the
Fardbeyan of the informant is that at 2:00 PM on 20.08.2024
when the informant and his father were cutting grass for fodder
of their animals, co-villagers Vijay Pandey, Ajay Pandey, Uma
Shankar Pandey, Vikramaditya Pandey, Manish Pandey, Rakesh
Rai (appellant herein) and Sanjay Rai along with four unknown
persons came to the place of occurrence with country made
pistols and guns in their hands and soon after visiting the place,
Vijay Pandey stated that they had to kill the informant and his
father, both, because they are litigating in court in regard to the
land. Vijay Pandey also fired at his father hitting him near the
left ear. Ajay Pandey fired at the informant hitting near his neck.
Uma Shankar Pandey also fired at his father hitting his back.
His father fell down. Rest persons also fired at the informant.
But he was able to escape from the firing. Thereafter, all the
accused persons went back doing firing. The incident has been
witnessed to by three persons including Hardev Rai and Pravin
Patna High Court CR. APP (SJ) No.5154 of 2024 dt.17-01-2025
Kumar Pandey who were also cutting grass. His father died on
the place of occurrence itself.
3. On the claim of the appellant to be juvenile, his
case was separated and sent to the Juvenile Justice Board,
Buxar, and after inquiry, he was declared to be juvenile vide
order dated 9.4.2021 and, thereafter, on preliminary assessment
by the Juvenile Justice Board, Begusarai, his case was
transferred to Children Court for trial under Section 18(3) of
Juvenile Justice Act, 2015 vide order dated 21.06.2023 and,
hence, it was registered as Adult Children Case No. 14 of 2023
by the Children Court. The appellant moved for regular bail
before the Children Court and the same was rejected by the
impugned order.
4. Social Investigation Report is also on record. As
per the this report, the petitioner has no physical handicap. His
grand-parents are illiterate whereas the father of the appellant is
9th class pass and he is said to be working in Rajasthan as a
labourer. His mother is also an illiterate lady and house wife.
His younger brother is 12 years of age and student of 7 th Class.
His younger sister is also 11 years old and she is also a school
student. Health of all the family members are normal. The
relationship of the petitioner has been shown to be cordial with
Patna High Court CR. APP (SJ) No.5154 of 2024 dt.17-01-2025
all the family members. It is also stated that prior to the present
occurrence, no family member was involved in any criminal
case. However, subsequent to the occurrence, there is one more
criminal Case registered against his father bearing Bagengola
P.S. Case No. 17 of 2021 for the offences punishable under
Sections 307 and other allied Sections of the Indian Penal Code
and Section 27 of the Arms Act However, his father is on bail in
this case. All the family members are shown to be religious and
traditional. The family has three Bighas agricultural land and
one small house. However, the appellant has no habit of
smoking, drinking, taking drugs, gambling and begging.
However, he has no habit of playing indoor or outdoor games,
reading books, or doing religious activities or drawing painting,
acting, singing or any other activities. But the appellant has been
shown to be a disciplined child. He is also shown to be working
as a labourer in a private company in Rajasthan. He is shown to
have been contributing to the maintenance of the joint family.
The appellant is illiterate and has no vocational training either.
Most of his friends are also illiterate. The attitude of the
appellant towards his friends is normal. He is not shown to be
victim of any offence. He has been shown to be involved in the
alleged offence on account of influence of his friends. It has also
Patna High Court CR. APP (SJ) No.5154 of 2024 dt.17-01-2025
been shown that the family of the appellant comes in low
income group and family members are either illiterate or hardly
literate. During the childhood, he had been shown to be living at
the house of his father's sister, where he took elementary
education. But on account of his lack of interest in studies, he
was sent back to the parents, who were working in Rajasthan.
He joined in a private company as a labourer. But during corona
period, he came back to his home. There was already land
dispute between the appellant and the informant side. The
educational training has been recommended for the appellant for
his rehabilitation.
5. I heard learned counsel for the appellant and
learned APP for the State.
6. Learned counsel for the appellant submits that the
impugned order is not sustainable in the eye of law. The learned
Children Court has erroneously rejected the regular bail petition
of the appellant on irrelevant consideration. He also refers to
and relies upon a judgment of this Court titled- Biswajit Kumar
Pandey @ Lalu Kumar Vs. State of Bihar, reported in 2024
SCC OnLine Pat 8499.
7. However, learned APP for the State defends the
impugned judgment submitting that there is no illegality or
Patna High Court CR. APP (SJ) No.5154 of 2024 dt.17-01-2025
infirmity in it. Hence, the present petition is liable to be
dismissed.
8. Before I consider the rival submission of the
parties, it would be pertinent to refer to Section 12 of the
Juvenicle Justice (Care and Protection) Act, 2015, which deals
with bail to the Juvenile. Section 12 of the Act reads as
follows:-
"12. Bail to a person who is apparently a child alleged
to be in conflict with law.-(1) When any person, who is
apparently a child and is alleged to have committed a bailable
or non-bailable offence, is apprehended or detained by the
police or appears or brought before a Board, such person shall,
notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974) or in any other law for the time
being in force, be released on bail with or without surety or
placed under the supervision of a probation officer or under the
care of any fit person:
Provided that such person shall not be so released if there
appears reasonable grounds for believing that the release is
likely to bring that person into association with any known
criminal or expose the said person to moral, physical or
psychological danger or the person's release would defeat the
ends of justice, and the Board shall record the reasons for
denying the bail and circumstances that led to such a decision.
(2) When such person having been apprehended is not
released on bail under subsection (1) by the officer-in-charge of
the police station, such officer shall cause the person to be kept
only in an observation home ¹[or a place of safety, as the case
may be,] in such manner as may be prescribed until the person
can be brought before a Board.
(3) When such person is not released on bail under sub-
section (1) by the Board, it shall make an order sending him to
an observation home or a place of safety, as the case may be,
for such period during the pendency of the inquiry regarding
the person, as may be specified in the order.
(4) When a child in conflict with law is unable to fulfil the
conditions of bail order within seven days of the bail order,
such child shall be produced before the Board for modification
of the conditions of bail."
(Emphasis Supplied)
9. In Biswajit Kumar Pandey case (supra), this Court
Patna High Court CR. APP (SJ) No.5154 of 2024 dt.17-01-2025
had discussed the statutory provisions of the Juvenile Justice
Act, 2015 and binding judicial precedents in details and held as
follows:-
"10. From perusal of Section 12 of the J.J. Act, 2015, it clearly
emerges that Section 12 of the Act overrides the bail provisions
as contained in the Criminal Procedure Act, 1973 or any other
law for time being in force. It further emerges that as per
Section 12 of the Act, bail to the Juvenile is a rule and refusal
of the same is an exception and Juvenile can be denied bail
only on the following grounds:
(i) if there appears reasonable grounds for believing that the
release is likely to bring that person into association with any
known criminal or
(ii) expose the said person to moral, physical or psychological
danger or
(iii) the person's release would defeat the ends of justice.
11. Use of the expression- "such person shall be released on
bail" in Section 12(1) of the Act also shows that grant of bail
to a juvenile is mandatory unless grounds for denial are
present.
12. It also emerges that seriousness of the alleged offence or
the age of the juvenile are also no relevant considerations for
denial of bail under Section 12 of the J.J. Act. Even a child who
has completed or is above the age of 16 years and is alleged to
have committed a heinous offence is also entitled to get bail
under Section 12 of the Act, 2015. There is no classification
whatsoever provided in Section 12 of the Act, 2015 in regard to
grant of bail. Section 12 is applicable to all juveniles in conflict
with law without any discrimination of any nature. (Also refer
to Lalu Kumar @ Lal Babu Vs. State of Bihar, 2019 (6) BLJ
2016)
13. It also emerges that Section 12 of the Act, 2015 is in
consonance with the object of the J.J. Act, which intends not to
punish juveniles in conflict with law but to reform and
rehabilitate them by proper care, protection, development and
social reintegration by adopting a child friendly approach in the
adjudication and disposal of matters in their best interest. The
Act is based on the belief that children are the future of the
society and in case they go into conflict with law under some
circumstances, they should be reformed and rehabilitated and
not punished. No society can afford to punish its children.
Punitive approach towards children in conflict with would be
self-destructive for the society.
14. The object of the Act manifests not only in the preamble to
the Act but also in Section 3 of the Act providing for general
principles to be followed in administration of the Act.
15. It also emerges that Reformatory or Observation Home is
one of the measures contemplated by our legislature for
Patna High Court CR. APP (SJ) No.5154 of 2024 dt.17-01-2025
reforming and rehabilitating the delinquent children. However,
the family of the child in conflict with has been considered by
the legislature as the best and first desirable institution to
achieve the object of the Act. Hence, the primary responsibility
of care and protection of the child has been given to the
biological family or adoptive or foster parents of the child and
it has been contemplated that every child in conflict with law
has right to be reunited with his family at the earliest.
Institutionalization of a juvenile in conflict with law has been
contemplated as the last resort. Such principles manifest in
clauses iv, v, xii and xiii of Section 3 of the Act of 2015 which
are as follows:
"3. General principles to be followed in
administration of Act. The Central Government, the
State Governments, the Board, and other agencies, as
the case may be, while implementing the provisions of
this Act shall be guided by the following fundamental
principles, namely:--
..................................................................
(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.
..................................................................
.
(xii) Principle of institutionalisation as a measure of
last resort: A child shall be placed in institutional care
as a step of last resort after making a reasonable
inquiry.
(xiii) Principle of repatriation and restoration: Every
child in the juvenile justice system shall have the right
to be re-united with his family at the earliest and to be
restored to the same socio-economic and cultural status
that he was in, before coming under the purview of this
Act, unless such restoration and repatriation is not in
his best interest."
(Emphasis Supplied)
16. In view of the aforesaid object and principles of the J.J.
Act, 2015, Section 12 of the Act provides for mandatory bail to
a juvenile in conflict with law unless the grounds as provided
in the proviso to Section 12(1) of the Act is/are present, so that
the child is re-united with his family at the earliest opportunity
and the protection, development, reformation and rehabilitation
of the child is ensured.
17. Hence, as per the J.J. Act of 2015, a child in conflict with
law is not expected to be treated as an adult offender.
Fundamentally a different approach is required while dealing
Patna High Court CR. APP (SJ) No.5154 of 2024 dt.17-01-2025
with juvenile in conflict with law. All Courts are required to
deal with juvenile in conflict with law with all sensibility and
responsibility keeping in mind the object of the J.J. Act to
reform and rehabilitate the child, so that he can become a
responsible and productive member of the society. The society
would get ruined if such children are dealt with punitive and
not reformatory approach."
(Emphasis Supplied)
10. Coming to the case on hand, I find that the learned
Children Court has rejected the bail petition of the appellant on
the grounds that he is actively involved in the alleged offence of
murder and he is also associated with criminal activities and has
a bad company and his release would bring him into association
with other known criminals or expose him to moral, physical
and psychological danger and his release would defeat the ends
of justice.
11. However, as per the statutory provisions and
binding judicial precedents, I find that involvement of the
appellant in offence of serious nature is no ground for denying
bail to a juvenile.
12. Moreover, the observation of learned court below
that the appellant is associated with criminal activities and he
has bad company is baseless. The Social Investigation Report
does not show that the appellant was involved in any criminal
activities prior to the present case. In fact, he was working as a
labourer in Rajasthan on account of poor condition of his family.
Patna High Court CR. APP (SJ) No.5154 of 2024 dt.17-01-2025
No crime has been shown to have been committed by him or
any members of his family prior to the present case.
13. Even finding of the Children Court that the release
of the appellant would bring him into bad company is also
unfounded. As per Social Investigation Report, I do not find that
he was a member of any criminal gang and his release may
bring him into company of that gang.
14. There is also no possibility, as per Social
Investigation Report, of exposing the appellant to moral,
physical or psychological danger, if he is released on bail.
15. I also find that learned Children Court has
misconceived the ends of justice when he has held that release
of the appellant would defeat the ends of justice. Perhaps,
learned Court below has been swayed by the seriousness of the
alleged offence of murder. But ends of justice in the context of
J.J. Act is totally different. The purpose and object of the J.J. Act
is to reform and rehabilitate the juveniles and not to punish
them. The preamble of the Act reads as follows:-
"An Act to consolidate and amend the law relating
to children alleged and found to be in conflict with law and
children in need of care and protection by catering to their
basic needs through proper care, protection, development,
treatment, social reintegration, by adopting a child-friendly
approach in the adjudication and disposal of matters in the best
interest of children and for their rehabilitation through
processes provided, and institutions and bodies established,
hereinunder and for matters connected therewith or incidental
thereto."
Patna High Court CR. APP (SJ) No.5154 of 2024 dt.17-01-2025
16. As such, if keeping of the child in custody is
helpful in his development and rehabilitation or protection, only
then it could be said that release of the child would defeat the
ends of justice. (Also refer to Abhishek Vs. State, 205 CriLJ
(NOC) 115 (Delhi) and Manoj Vs. State (NCT of Delhi, 2006
CriLJ 4759). Moreover, the family is considered as the best and
most desirable institution for ensuring welfare and rehabilitation
of the child, if the family environment is conducive for the
development of the child. In such situation, the release of the
appellant on bail would serve and promote the ends of justice
better than detaining the appellant in the observation home.
17. Hence, the impugned order is not sustainable in
the eye of law. It is accordingly set aside allowing the present
petition, directing the appellant to be released on bail subject to
furnishing bail bonds of Rs.10,000/- (Rs. Ten Thousand) by his
father and mother each subject to the following additional
conditions:
(i) The father and mother of the appellant undertake
by way of affidavit that the appellant would not come into
contact with any criminal;
(ii) They further undertake to provide vocational
training to the petitioner and;
Patna High Court CR. APP (SJ) No.5154 of 2024 dt.17-01-2025
(iii) They further undertake to ensure that the
petitioner would attend the J.J. Board and Courts as and when
required or directed.
(Jitendra Kumar, J.)
S.Ali/-
AFR/NAFR AFR
CAV DATE NA
Uploading Date 22.01.2025
Transmission Date 22.01.2025
