Uttarakhand High Court
Vishavjeet vs State Of Uttarakhand & Another on 8 January, 2025
Author: Ravindra Maithani
Bench: Ravindra Maithani
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No.263 of 2022
Vishavjeet ...Appellant
Versus
State of Uttarakhand & another ...Respondents
Present:-
Mr. Shashi Kant Shandilya, Advocate for the appellant.
Ms. Manisha Rana Singh, Deputy Advocate General for
the State.
Mr. M.K. Ray, Advocate for respondent no.2.
Hon'ble Ravindra Maithani, J. (Oral)
The challenge in this appeal is made to the
judgment and order dated 18.08.2021, passed in Special
Session Trial No.161 of 2021, State vs. Vishavjeet Rai, by
the court of FTC/Additional Sessions Judge/Special Judge
(POCSO), Udham Singh Nagar. By it, the Bail Application
No.1388/2021, in FIR No.166 of 2020, under Sections 302,
120-B & 34 IPC and 3/25 of the Arms Act, 1959, Police
Station Transit Camp, District Udham Singh Nagar, of the
appellant has been rejected.
2. Heard learned counsel for the parties and
perused the file.
3. According to the FIR, in the midnight of
19.06.2020, at about 2:30 a.m., some persons entered into
a house and fired at Sameer. Having heard the noise, when
the family members came from the room, they saw three
persons running from there. The FIR records that the
wife of the deceased had extramarital relationship with the
appellant, who threatened the deceased to life or required
him to divorce his wife so that the appellant could marry
her. The charge-sheet was submitted against the appellant
as an adult, but by the order dated 21.10.2020 passed in
Misc. Application No.115 of 2020, State vs. Vishvajeet Rai,
the court of Additional Judicial Magistrate/2nd Additional
Civil Judge (Senior Division), Rudrapur, District Udham
Singh Nagar, declared the appellant as Child in Conflict
with Law ("the CIL") and the matter was referred to the JJ
Board. A statement is given that after preliminary
assessment under Section 15 of the Juvenile Justice (Care
and Protection of Children) Act, 2015 ("the Act"). It has
been directed that the appellant shall be tried as an adult.
It is, thereafter, the trial proceeded in the Children
Courts/FTC/Additional Sessions Judge/Special Judge
(POCSO), Udham Singh Nagar, in which, by the impugned
order, the bail application of the appellant has been
rejected.
4. Learned counsel for the appellant would submit
that in the instant case, the provisions of Section 12 of the
Act, has not been considered. The appellant is not named
in the FIR. The appellant has been falsely implicated.
5. Learned State Counsel would submit that the
social background report of the appellant is satisfactory; as
per the report from Special Home, Haridwar, the appellant is
improving and he needs supervision.
6. Learned counsel for the informant would submit
that in the year 2019, the FIR under Section 60 of the U.P.
Excise Act was lodged against the appellant. Therefore, his
conduct may not be termed as satisfactory. He is the prime
accused in the instant case. The recovery was made from
him.
7. It is admitted that the bail application of the
appellant has to be considered, in view of Section 12 of the
Act.
8. On being asked, learned counsel for the appellant
would submit that the father of the appellant seeks his
custody. He is a labourer. The appellant is also a labourer.
They are poor.
9. For a child in conflict with law (CIL), every offence
is bailable despite the offence being classified as bailable or
non bailable. A child in conflict with law is entitled to be
released on bail in view of Section 12 of the Act. Subject to
the certain rider as given in the proviso to the Section 12 of
the Act. A CIL may not be released on bail, if there appears
reasonable grounds for believing that the release is likely to
bring him into association with any known criminal or
expose him to moral, physical or psychological danger or his
release would defeat the ends of justice.
10. The provisions of the Act are child centric and the
best interest of the child is to be ensured. Section 3 of the
Act incorporates the general principles that are to be
followed in the administration of the Act. In fact, Section 3
sub section (iv) and (v) are important on this aspect, which
are as follows:-
"(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."
11. What is stated is that the appellant is the poor
person. He and his father, both are labourers. Having a
case in the past, per se may not fall the case under the
proviso of Section 12 of the Act.
12. Learned State Counsel would submit that the
social background report is prepared based on the
information given by the family members and the
neighbours of the appellant.
13. Having considered the entirety of facts, this Court
is of the view that the case of the appellant does not fall in
the proviso to Section 12 of the Act. The best interest of the
appellant would be served, if he is given to the custody of
his father.
14. Having considered, the entirety of facts, this
Court is of the view that in this case, there is no impediment
in grant of bail to the CIL. Accordingly, the appeal deserves
to be allowed.
15. The appeal is allowed. The judgment and orders
are set aside.
16. The CIL be given into the custody of his father
subject to production of two reliable sureties. The father of
the CIL shall also give an undertaking that he shall take
care of the CIL and shall not allow him to contact any of the
witnesses or their family members. The father of the CIL
shall also undertake that he shall also not contact either the
witnesses or any of their family members.
(Ravindra Maithani, J.)
08.01.2025
Ravi
