Bangalore District Court
Ram Ashish Singh vs State Of Karnataka on 30 August, 2018
IN THE COURT OF L ADDITIONAL CITY CIVIL &
SESSIONS JUDGE, BENGALURU CITY (CCH-51)
Dated this the 30th Day of August 2018
PRESENT
Smt. SUSHEELA, B.A., LL.B.
L Additional City Civil & Sessions Judge,
Bengaluru
CRIMINAL APPEAL No.1447/2018
APPELLANTS: 1 Ram Ashish Singh,
S/o. Shravan Kumar, 17 years,
R/of. Jamuaria Khurd,
Kudawa Post, Sant Kabir Nagar,
Presently at Observation Home,
Madiwala, Bengaluru.
2 Mayank Singh,
S/o. Shravan Kumar, 14 years,
Resident of Jamuaria Khurd,
Kudawa Post, Sant Kabir Nagar,
Presently at Observation Home,
Madiwala, Bengaluru.
Since appellant No.1 and 2 are
minors-both are represented by their
Father & Guardian-
Sri. Shravan Kumar Singh,
S/o. Sri.Baliram, 40 years,
Resident of Jamuaria Khurd,
Kudawa Post, Sant Kabir Nagar.
Presently at Bengaluru
By Sri.N.M.P. Advocate
/ Vs /
2 Crl.A. No.1447/2018
RESPONDENT: State of Karnataka,
By Vidyaranyapura Police Station,
Bengaluru.
By Public Prosecutor- Bengaluru
JUDGEMENT
The appellants have filed this petition under Section 101(1) of Juvenile Justice Act, 2015, aggrieved by the order of rejection of bail of the appellants dated 05-05-2018 passed by Juvenile Justice Board-Madiwala, Bengaluru in J.C.No.47/2018 (Crime No.352/2017) and to set-aside the above said order by granting regular bail to the appellants in the interest of Justice.
2. The Juvenile Justice Board-Madiwala, Bengaluru has rejected the bail application of the appellants filed under section 12 of Juvenile Justice (Care & Protection) Act of 2015. Here the legality and correctness of the said order is under challenge and also granting of regular bail to them in the present appeal.
3. In the instant appeal, the appellants herein after referred as juvenile offenders and the respondent herein after referred as complainant/police for the sake of convenience. The 3 Crl.A. No.1447/2018 Vidyaranyapura Police, Bengaluru registered case against appellants for the offences punishable under Section 302, 201, 120-B read with 34 of IPC in Crime No.357/2017(J. C. No.47/ 2018).
4. It is the case of the prosecution that the complainant-Sheik Babu is the owner of the house bearing No. 205, 3rd Cross, Near Tamarind Tree, M.S.Palya, Vidyaranya Pura, Bengaluru and the deceased-Subhas was the tenant of his house situated at 2nd Floor having sheet roof. About two years back the deceased had taken the said house for rent by giving advance of Rs.3,000/- on a monthly rent of Rs.1,300/-. He was doing painting work. After occupying the said house of six months, the brothers of his wife viz., Bolla and Mayank-the juvenile offenders No.1 and 2 came and started to reside along with the deceased in the said house, they were also doing painting work. The juvenile offenders No.1 and 2 were always quarrelling with the deceased in respect of the matter of wife of deceased, on 3 or 4 times they have assaulted the deceased, at that time the complainant intervened and advised them not to do such things. About 15 days back the deceased went to his 4 Crl.A. No.1447/2018 native place and the juvenile offenders No.1 and 2 were in the said house. On 04-09-2017 at about 10.00 p.m., the deceased return to Bengaluru and to the house and he was talking over phone with his wife loudly about divorce matter. On the very same day at about 05.30 p.m., the deceased-Subhas along with juvenile offenders went near the shop of the complainant and raised voice loudly and were making galata with each other in respect of justice to wife of the deceased who was the sister of juvenile offenders. At that time the juvenile offenders No.1 and 2 told that if the deceased repeat the same they are not allowing him to live, at that time the complainant pacified their dispute by advising them. On the next day neither the deceased nor the juvenile offenders found in the house and the complainant thought that they have gone outside for their work, but on 07- 09-2017 at about 11.30 a.m., he received some bad smell from the 2nd floor, he along with his son-Sheik Riyaz went to 2nd floor and found that the house of the deceased was locked and bad smell was coming out in the said house only. They went near the door of the said house and saw blood clot near the door. On seeing inside the house through the window they found the 5 Crl.A. No.1447/2018 deceased was lying dead in ditiorate condition. As a result, he has intimated the same to the police, the police came and opened the door by breaking upon the lock and came to know that the deceased was murdered and the juvenile offenders No.1 and 2 were not found. As a result he has lodged complaint and on the basis of said complaint the respondent /police registered the case in Crime No.352/2017 for the offences punishable under Section 302, 201 read with section of 34 of IPC.
5. Initially the juvenile offenders No.1 and 2 were produced before the 4th A.C.M.M., Court Bengaluru as per the copy of the order sheet produced by the appellants and thereafter they were remanded to judicial custody, after coming to know that the juvenile offenders are minors, the case was made over to Juvenile Justice Board for further proceedings. Before the Juvenile Justice Board the juvenile offenders represented by their father filed bail application under section 12 of Juvenile Justice Act, 2015. The prosecution has filed objections to the petition and after hearing arguments on merits, the Juvenile Justice Board-Madiwala, Bengaluru dismissed the bail application on 05-05-2018. 6 Crl.A. No.1447/2018
6. Aggrieved by said order, juvenile offenders No.1 and 2 being the appellants have preferred this appeal on the following grounds:
It is the ground of appellants that they are under age of 18 and the documents pertaining to their age proof i.e., school records and the extract of the family register by the village officer have been produced before the Board to show they are minor boys. They are in the State custody for nearly one year over all now. Their crucial formative years are being spent in agony and depression thereby depriving them their right to decent and dignified life bestowed under Article 21 of the Indian Constitution and also hampered their Right to Education. They are coming from very respectable from the State of Uttar Pradesh and have deep roots in the society. They are law- abiding citizens and have no criminal antecedents of whatsoever. The prosecution filed templated objections in both the applications, except for inclusion of Para-3 in the said objection, without actually understanding the facts of the bail application. From the objections discloses the prosecution seems to bent upon declaring the juveniles as offenders, merely 7 Crl.A. No.1447/2018 based upon the allegations made in complaint and FIR filed by the Investigation Officer, even without full fledged trial being conducted. The Juvenile Board in its order in Para-18 failed to observe that the first bail application contained pleading for allowing the bail application to enable the juveniles to appear for their 10th standard Board examination, whereas the second bail application contained pleading to enlarge them to appear for the upcoming supplementary exams, as the appellants herein could not write their main exams, due to rejection of their first bail application. The Board also erred in its observation that no documents have been produced to show the class in which the appellants are studying, inspite of production of Hall Ticket/Admit Card pertaining to the previous year in respect of their 9th standard. At present, the appellants were appearing for their 10th standard exams and the documents pertaining to said studies are also produced, but the Board failed to scrutinize the same and grant bail to them. The Board in Para 22 of its order dated 05-05-2018 failed to consider that failure on the part of the Investigation Officer to provide full and complete report or information cannot be attributed to the 8 Crl.A. No.1447/2018 appellants herein in any way. It is up to the concerned authority to perform its due diligence in the interest of justice. The Board ought to have followed the principles of Section 25, 26 and 27 of Indian Evidence Act that voluntary statement of the accused cannot be a part of evidence and also it has to be considered only after full fledged trial, as such the observations made by the Board on the voluntary statement made by them cannot be a ground for rejection of bail to the appellants. The Board failed to observe about the order dated 10-05-2018 in respect of school records of the juvenile No.1 as on the date of alleged incident. The Board ought to have appreciated the fact that the bail to a juvenile cannot be refused in any uncared manner and on conjectures and surmises. The impugned order under appeal completely lacks legal sanctity as it is not signed by all the members of the Board as per Section 7(4) of J.J. Act.
The Board not considered the bail petition as per the provisions of Section 12 of J.J. Act. Section 12 of J.J. Act is very clear, the merits or nature of offence has no relevancy and the gravity of the offence is not a ground to deny bail to a juvenile accused. The Juvenile Justice Law works on the principles of restorative 9 Crl.A. No.1447/2018 justice and puts the best interest of the child first. A juvenile needs parental protection and guidance to bring back to the main stream of the society from which he has strayed. They have requested to allow the appeal as prayed for.
7. While resisting the instant appeal, the learned Public Prosecutor filed objections stating that the appeal is not maintainable either in law or on facts and the same is liable to be dismissed. The Investigation officer has conducted further investigation and filed charge sheet against the appellants which prima-facie discloses about the commission of offences by the appellants. The J.J. Board passed the order under appeal by rejecting the bail petition of the appellants is legally correct. The juvenile offenders have committed the offences and the same is serious in nature, as such they are not entitled for bail order. If at this stage, they are enlarged on bail, they may abscond or they may tamper or hamper the prosecution witnesses and thereby cause delay to the proceedings. He has requested to reject the petition as prayed for.
8. Arguments heard from both the sides. The learned 10 Crl.A. No.1447/2018 advocate for appellants also produced documents as per Annexure-A to J for consideration and thereafter the matter is set down for judgment.
9. On the basis of the above facts, the following points that arise for my consideration are as under:-
1. Whether the appellants prove that the Juvenile Justice Board-Madiwala, Bengaluru has committed error in rejecting the petition of appellants filed under Section 12 of Juvenile Justice Act of 2015 and they are entitled for regular bail as contended in the grounds of appeal?
2. Whether the impugned order needs interference of this Court?
3. What order?
10. My findings on the above points are as under:-
Point No.1: Partly in the Negative against appellant No.1 and partly in the Affirmative against appellant No.2.
Point No.2: Partly in the Negative against appellant No.1 and partly in the Affirmative against appellant No.2.
Point No.3: As per the final orders for the following:
REASONS
11. Point No.1 and 2:- Since the facts and circumstances involved in these two points are one and the 11 Crl.A. No.1447/2018 same. Hence, I have taken up together for consideration to avoid repetition of reasons.
12. Perused the entire record impugned order under appeal and also arguments addressed by the learned advocate for appellants and learned Public Prosecutor coupled with produced documents with written arguments by the learned advocate for appellants.
13. It is the case of the prosecution that the complainant-Sheik Babu is the owner of the house bearing No. 205, 3rd Cross, Near Tamarind Tree, M.S.Palya, Vidyaranya Pura, Bengaluru and the deceased-Subhas was the tenant of his house situated at 2nd Floor having sheet roof. About two years back the deceased had taken the said house for rent by giving advance of Rs.3,000/- on a monthly rent of Rs.1,300/-. He was doing painting work. After occupying the said house of six months, the brothers of his wife viz., Bolla and Mayank-the juvenile offenders No.1 and 2 came and started to reside along with the deceased in the said house, they were also doing painting work. The juvenile offenders No.1 and 2 were always 12 Crl.A. No.1447/2018 quarrelling with the deceased in respect of the matter of wife of deceased, on 3 or 4 times they have assaulted the deceased, at that time the complainant intervened and advised them not to do such things. About 15 days back the deceased went to his native place and the juvenile offenders No.1 and 2 were in the said house. On 04-09-2017 at about 10.00 p.m., the deceased return to Bengaluru and to the house and he was talking over phone with his wife loudly about divorce matter. On the very same day at about 05.30 p.m., the deceased-Subhas along with juvenile offenders went near the shop of the complainant and raised voice loudly and were making galata with each other in respect of justice to wife of the deceased who was the sister of juvenile offenders. At that time the juvenile offenders No.1 and 2 told that if the deceased repeat the same they are not allowing him to live, at that time the complainant pacified their dispute by advising them. On the next day neither the deceased nor the juvenile offenders found in the house and the complainant thought that they have gone outside for their work, but on 07- 09-2017 at about 11.30 a.m., he received some bad smell from the 2nd floor, he along with his son-Sheik Riyaz went to 2nd floor 13 Crl.A. No.1447/2018 and found that the house of the deceased was locked and bad smell was coming out in the said house only. They went near the door of the said house and saw blood clot near the door. On seeing inside the house through the window they found the deceased was lying dead in ditiorate condition. As a result, he has intimated the same to the police, the police came and opened the door by breaking upon the lock and came to know that the deceased was murdered and the juvenile offenders No.1 and 2 were not found.
14. It is the contention of the juvenile offenders' that, they are under age of 18 and the documents pertaining to their age proof i.e., school records and the extract of the family register by the village officer have been produced before the Board to show they are minor boys. They are in the State custody for nearly one year over all now. Their crucial formative years are being spent in agony and depression thereby depriving them their right to decent and dignified life bestowed under Article 21 of the Indian Constitution and also hampered their Right to Education. They are coming from very respectable from the State of Uttar Pradesh and have deep roots in the society. 14 Crl.A. No.1447/2018 They are law-abiding citizens and have no criminal antecedents of whatsoever. The prosecution filed template objections in both the applications, except for inclusion of Para-3 in the said objection, without actually understanding the facts of the bail application. From the objections discloses the prosecution seems to bent upon declaring the juveniles as offenders, merely based upon the allegations made in complaint and FIR filed by the Investigation Officer, even without full fledged trial being conducted. The Juvenile Board in its order in Para-18 failed to observe that the first bail application contained pleading for allowing the bail application to enable the juveniles to appear for their 10th standard Board examination, whereas the second bail application contained pleading to enlarge them to appear for the upcoming supplementary exams, as the appellants herein could not write their main exams, due to rejection of their first bail application. The Board also erred in its observation that no documents have been produced to show the class in which the appellants are studying, inspite of production of Hall Ticket/Admit Card pertaining to the previous year in respect of their 9th standard. At present, the appellants were 15 Crl.A. No.1447/2018 appearing for their 10th standard exams and the documents pertaining to said studies are also produced, but the Board failed to scrutinize the same and grant bail to them. The Board in Para 22 of its order dated 05-05-2018 failed to consider that failure on the part of the Investigation Officer to provide full and complete report or information cannot be attributed to the appellants herein in any way. It is up to the concerned authority to perform its due diligence in the interest of justice. The Board ought to have followed the principles of Section 25, 26 and 27 of Indian Evidence Act that voluntary statement of the accused cannot be a part of evidence and also it has to be considered only after full fledged trial, as such the observations made by the Board on the voluntary statement made by them cannot be a ground for rejection of bail to the appellants. The Board failed to observe about the order dated 10-05-2018 in respect of school records of the juvenile No.1 as on the date of alleged incident. The Board ought to have appreciated the fact that the bail to a juvenile cannot be refused in any uncared manner and on conjectures and surmises. The impugned order under appeal completely lacks legal sanctity as it is not signed 16 Crl.A. No.1447/2018 by all the members of the Board as per Section 7(4) of J.J. Act. The Board not considered the bail petition as per the provisions of Section 12 of J.J. Act. Section 12 of J.J. Act is very clear, the merits or nature of offence has no relevancy and the gravity of the offence is not a ground to deny bail to a juvenile accused. The Juvenile Justice Law works on the principles of restorative justice and puts the best interest of the child first. A juvenile needs parental protection and guidance and guidance to bring back to the main stream of the society from which he has strayed. They have requested to allow the appeal as prayed for.
15. On the contrary it is the stand of the learned Public Prosecutor that the appeal is not maintainable either in law or on facts and the same is liable to be dismissed. The Investigation officer has conducted further investigation and filed charge sheet against the appellants which prima-facie discloses about the commission of offences by the appellants. The J.J. Board passed the order under appeal by rejecting the bail petition of the appellants is legally correct. The juvenile offenders have committed the offences and the same is serious 17 Crl.A. No.1447/2018 in nature, as such they are not entitled for bail order. If at this stage, they are enlarged on bail, they may abscond or they may tamper or hamper the prosecution witnesses and thereby cause delay to the proceedings.
16. By going through the impugned order under appeal, the Juvenile Justice Board while observing the voluntary statement given by the juvenile offenders, the objections raised by the Senior A.P.P., and also as the nature of the offence is heinous one, has rejected the bail application of the juvenile offenders filed under section 12 of Juvenile Justice Act, 2015 on 05-05-2018. No doubt it is true that the appellants have produced documents-Annexure-A to J to show that they are studying at 10th standard and the examination already completed and in view of non-granting of bail in the first bail application, they lost their exams, now they have come up with this appeal, so as to enable them to attend supplementary exams as mentioned in the grounds of appeal.
17. The learned advocate for petitioner argued that the appellants were arrested by police on 07-09-2017, produced 18 Crl.A. No.1447/2018 before IV-A.C.M.M. Court on 22-09-2017, they were remanded to judicial custody and kept in judicial custody for four months. Subsequently an application was made by the father of the appellants who is natural guardian on 10-01-2018 and produced documents to show the appellants were minor at the time of alleged incident. Thereafter the said Court transferred the petition in respect of appellant No.1 to J.J. Board and he was kept in Observation Home from 17-01-2018 to 15-03-2018 for a period of two months. Subsequently he was transferred Special Home and kept there from 16-03-2018 to till date. The father of the appellants filed bail petition for their release stating that the appellants were studying in 10th Standard and the examinations scheduled to start from 06-02-2018 and also produced relevant documents to show they were students of the said school and they were present during the academic year in the said school and also produced copy of Hall Ticket and examination time table, but the said application was dismissed on the ground that preliminary assessment of the juveniles is required under section 15 of J.J. Act is not yet completed. Thereafter the appellants have preferred an appeal in Criminal 19 Crl.A. No.1447/2018 Appeal No.200/2018 before this Court, the same was also dismissed on the same ground. Now, the preliminary assessment report as mandated under Section 15 of the J.J. Act is received. Again the bail application was filed by the father of the appellants, but the J.J. Board dismissed the second successive bail petition as per the objections filed by the learned A.P.P. He has also filed arguments before J.J. Board in detail. Inspite of vehement arguments and contentions placed before the J.J. Board, the J.J. Board was pleased to reject the application on 05-05-2018 and the Board reserved its further orders for 10-05-2018, further the J.J. Board directed to produce the appellant No.1 before the before jurisdictional Child Friendly Court.
18. The learned advocate for appellants argued that the members of the board were not in favour of the order dated 05- 05-2018 passed by the Chairman of the Board. They expressed their dissent by refraining from signing the said order. It was observed in the order dated 10-05-2018 that the members a report on their on-consensus of the orders passed by the chairman of the board. They have also submitted their report 20 Crl.A. No.1447/2018 with observation on 24-05-2018 stating that the psychological assessment of the appellants is normal, but there is a hint of sadness and depression due to detention for one year now. Further observed that his conduct and behaviour in the Observation Home and also in Special Home has been very good and he is entitled for bail and requested to consider bail petition of petitioner.
19. Further, this Court feels to observe that whether the juvenile offenders have committed the alleged offences or not have to be looked into at the time of full fledged trial and not at this stage. At the same time, they have taken contention that they are innocent, law abiding citizens and they have not committed any offences as alleged against them. It is also true the charge sheet filed against juvenile offenders in respect of offences under section 302, 201, 120-B read with section 34 of IPC, which is not bailable in nature, but punishable by death or life imprisonment. At this stage on perusal of Annexure-H, the members of the Board also observed and stated that the psychological assessments of the appellants is normal, but there is a hidden sadness and depression due to their detention 21 Crl.A. No.1447/2018 for about one year now. Further they have also expressed their conduct and behaviour in the Observation Home and also in Special Home has been very good and they are entitled for bail. If the above said observation is taken into consideration, though the offences are heinous in nature, but the appellants are in jail since from one year. Section 12 of J.J. Act is very clear inspite of any kind of offences, if the offender is juvenile, they are entitled for bail. Here also though the offences are heinous in nature considering their reformative in nature, as per the observations of the members as per Annexure-J, it is just and proper to consider the request of the appellants. At the same time in view of splitting up case after filing of charge sheet by the Investigation Officer, the case against appellant No.1 was transferred to this Court and he has also filed Criminal Miscellaneous No.6671/2018 and the same is also considered to day itself, hence question of considering his prayer in this appeal doesn't arises and at the same time the appellant No.2 has made out just grounds to consider his request.
20. Viewing from available material facts, circumstances, 22 Crl.A. No.1447/2018 documents and also impugned order under appeal, this Court feels to observe that the Juvenile Justice Board-Madiwala, Bengaluru erred in coming to conclusion that the appellant No.2 is not entitled for regular bail from the hands of the Court at this stage. At the same time whatever grounds stated by the appellants herein is acceptable one in order to set-aside the impugned order under appeal of the appellant No.2 and to grant regular bail to the appellant No.2.
21. Taking into consideration the entire materials, circumstances, documents produced by the learned advocate for appellants, copy of charge sheet and arguments canvassed by both the sides, this Court has no impediment in arriving into conclusion that the appellant No.2 has established that the Juvenile Justice Board, Madiwala-Bengaluru has committed an error in rejecting his bail petition filed under section 12 of J.J. Act of 2015 and he is entitled for an order of appeal as stated in the grounds of appeal and also the impugned order needs interference by this Court. Consequently, I hold Point No.1 and 2 partly in the Affirmative in respect of appellant No.2 only. Further this Court also opined the appellant No.1 is not entitled 23 Crl.A. No.1447/2018 to any relief in this appeal for the above stated reasons.
22. Point No.3:- For the above said reasons and discussions, I proceed to pass the following:
ORDER The Criminal appeal is allowed in part. It is allowed in favour of appellant No.2-viz., Mayank Singh and it is dismissed against the appellant No.1-Ram Ashish Singh No order as to cost.
The impugned order passed by Juvenile Justice Board-Madiwala-Bengaluru dated 05-05- 2018 in J.C.No.47/2018 (Cr.No.352/2017) rejecting the bail petition filed by the appellants under Section 12 of Juvenile Justice Act, 2015 is hereby set-aside in respect of appellant No.2 only, consequently the bail petition filed by the appellants under section 12 of J.J. Act, 2015 before the trial Court is allowed in part. It is allowed in respect of appellant No.2 and it is dismissed in respect of appellant No.1.
The appellant No.2 viz., Mayank Singh is ordered to be released on bail in J.C.No.47/ 2018 (Cr.No.352/2017) for the offences punishable under 24 Crl.A. No.1447/2018 section 302, 201, 120-B read with section 34 of IPC, but not any other offences on his executing a personal bond for a sum of Rs.1,00,000/- with like sum two sureties to the satisfaction of J.J. Board- Madiwala, Bengaluru and subjected to the following conditions:
1. The appellant No.2 shall not tamper or terrorize the complainant or the prosecution witnesses.
2. The appellant No.2 shall appear before the Court regularly on all the dates of hearing.
3. The appellant No.2 shall not indulge in similar type of offences.
Any violation of the bail bond conditions stated above, the bail automatically stands cancelled.
(Dictated to the Judgment Writer, transcribed and typed by her. It is then corrected, signed and pronounced by me in open Court on this the 30th Day of August 2018) (SUSHEELA) L ADDL. CITY CIVIL & SESSIONS JUDGE BENGALURU