Patna High Court - Orders
Lalu Kumar @ Lal Babu @ Lallu vs The State Of Bihar on 9 July, 2019
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.2117 of 2019
Arising Out of PS. Case No.-236 Year-2018 Thana- BUXAR District- Buxar
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LALU KUMAR @ LAL BABU @ LALLU, Age-17 years, Son of Loha
Singh Under guardianship of his father Loha Singh Son of Ram Kailash
Singh , Resident of Village - Gandhi Nagar, Ward No. 2, Buxar, Bazar Samiti,
P.S.- Buxar (M), Distt - Buxar. ... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Bachan Jee Ojha-Advocate
Mr. Anand Kumar Ojha-Advocate
For the Informant : Mr. Digvijay Kumar Ojha-Advocate
Mr. Kamal Kishore Sinha-Advocate
For the Respondent/s : Mr. S. N. Prasad-A.P.P.
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL ORDER
7 09-07-2019Heard learned counsel for the appellant as well as learned Additional Public Prosecutor.
2. This appeal has been preferred in accordance with Section 101 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for brevity-Act), at the end of appellant on account of having his prayer for bail refused by the learned lower Court vide order dated 11.12.2018 in connection with Buxar (T) P. S. Case No.236 of 2018, Child Special Case No.10 of 2018.
3. In order to properly appreciate the submission, first of all, the facts of the case is to be seen.
4. Informant Dinesh Singh @ Dara Singh gave his fard-bayan on 08.05.2018 at 8.15 P.M. at Sadar Hospital Buxar Patna High Court CR. APP (SJ) No.2117 of 2019(7) dt.09-07-2019 2/12 wherein, he had disclosed that he happens to be priest in a temple situated at Jyoti Chowk. On the same day at about 7.20 P.M. while he was engaged in Puja, one boy came and informed that his son Sonu Kumar has been shot at Bus Stand Road, near Sri Mata Vaishnwi Fuel Centre. He immediately rushed. After reaching at Sri Mata Vaishnwi Fuel Centre, he had seen his son in an injured condition, having firearm injury over his chest right side and in pool of blood. Police also arrived there. With the help of police, he brought his son at Sadar Hospital where he has been declared dead. During course of query, his younger son Sunny Kumar aged about 19 years had disclosed that Lallu Kumar and Kamlesh Kumar Singh @ Billar have come to his residence and took him away towards Jyoti Chowk. His son Sunny Kumar had inquired, over which Lallu Kumar had disclosed that just from Jyoti Chowk, they are coming back, but they after carrying his son Sonu Kumar near Sri Mata Vaishnwi Fuel Centre (Bus Stand) shot at causing his death. It has further been disclosed that after hearing sound of firing, the persons of nearby rushed, who have seen Lallu Kumar and Kamlesh Kumar Singh @ Billar chased and during course thereof, they fired as a result of which, Gopal Kumar Yadav, a Nozal man at Petrol Pump had also become injured. It had also been disclosed Patna High Court CR. APP (SJ) No.2117 of 2019(7) dt.09-07-2019 3/12 that both the accused have been apprehended.
5. From the record, it is evident that appellant has been declared child in conflict with law and his age has been assessed as 17 years, 02 months, 20 days and so, the Juvenile Justice Board following the procedure prescribed under Section 15 of the Act, referred the matter in accordance with Sub- section-3 of Section 18 of the Act, to Children Court whereupon it has come before the Children Act and it is the children Court, who has passed the order impugned, subject matter of instant appeal.
6. It is the submission at the end of the learned counsel for the appellant that appellant along with Kamlesh Kumar Singh @ Billar was apprehended on chase and from the possession of Kamlesh Kumar Singh @ Billar, loaded pistol was recovered and for that, Buxar (T) P. S. Case No.235 of 2018 has been registered for an offence punishable under Section 25(1- B)a, 26 and 35 of the Arms Act. In the aforesaid case, appellant even being identified as a child in conflict with law has been granted bail under Cr. Misc. No.4848 of 2019 vide order dated 05.02.2019 (Annexure-4A). Furthermore, it has been submitted that at an earlier occasion, against the order impugned filed Cr. Misc. No.7470 of 2019, but appellant had withdrawn the same, Patna High Court CR. APP (SJ) No.2117 of 2019(7) dt.09-07-2019 4/12 as the Bench was at the view that being a child in conflict with law an appeal will be maintainable. Further submitted that informant himself is not an eye witness nor presence of any eye witness would curtail the entitlement of the appellant being a child in conflict with law and so, submitted that considering the period of custody in consonance with the status of the appellant being child in conflict with law, appellant be released on bail.
7. The learned Additional Public Prosecutor as well as learned counsel for the informant opposed the prayer and submitted that the exceptions whatever been enumerated under Section 12 of the Juvenile Justice (Care and Protection of Children) Act is clearly applicable in the facts and circumstances of the case as appellant has got criminal antecedent in the background of registration of Buxar (T) P. S. Case No.235 of 2018. That being so, if released, would defeat the ends of justice, more particularly in the background of the nature of offence having been committed at the end of the appellant along with Kamlesh Kumar Singh @ Billar. In an alternative, it has also been pleaded that Section 12 will not be affordable at the end of appellant, because of the fact that after having the case transferred to the Children Court.
8. Once an accused is declared to be child in conflict Patna High Court CR. APP (SJ) No.2117 of 2019(7) dt.09-07-2019 5/12 with law, then in that circumstance, his interest is to be seen, cared, in accordance with Section 12 of the Act, on account of being under custody whereunder bail is a rule and rejection is an exception irrespective of nature of the offence. Furthermore, as is evident, on plain reading of the Section 12 of the Act, that it has got reference of the Board that means to say, the Juvenile Justice Board only. After Nirbhaya Case, there has been an amendment on account of identifying the status of a delinquent falling in between 16 to 18 years age and so, his status has been properly segregated in consonance with the nature of the offence so classified as petty, serious, heinous and that happens to be reason behind constitution of the Children Court relating to trial of heinous offence. Furthermore, in order to properly adjudicate and identify the mental status, mental equilibrium of a delinquent, the Board has been entrusted to conduct an inquiry and for that, the Board has been given ample power to take assistance of psychologist or psycho-social workers or expert in accordance with Section 15 of the Act and then, as per Section 18 of the Act, the Board has been entrusted to pass an order of different nature so enumerated therein including referring the matter to the Children Court in the background of positive direction that the trial of the child in conflict with law needs to Patna High Court CR. APP (SJ) No.2117 of 2019(7) dt.09-07-2019 6/12 be conducted as an adult and for better appreciation, Section 18(3) of the Act is quoted below:-
"18. Orders regarding child found to be in conflict with law._(3) Where the Board after preliminary assessment under section 15 pass an order that there is a need for trial of the said child as an adult, then the Board may order transfer of the trial of the case to the Children's Court having jurisdiction to try such offences."
9. Now, comes to the term of Children Court. So far procedure to be adopted by a Children Court is concerned, Section 19(1) of the Act is to be properly taken care of:-
"19. Powers of Children's Court.-(1) After the receipt of preliminary assessment from the Board under section 15, the Children ś Court may decide that--
(i) there is a need for trial of the child as an adult as per the provisions of the Code of Criminal Procedure, 1973 and pass appropriate orders after trial subject to the provisions of this section and section 21, considering the special needs of the child, the tenets of fair trial and maintaining a child friendly atmosphere;(ii) there is no need for trial of the child as an adult and may conduct an inquiry as a Board and pass appropriate orders in accordance Patna High Court CR. APP (SJ) No.2117 of 2019(7) dt.09-07-2019 7/12 with the provisions of section 18."
10. Apart from this, the other provisions so enumerated therein did justify the special treatment, which could be perceived, after going through Sub-section-3 of Section 19 of the Act and for better appreciation, the same is also quoted below:-
"19. Powers of Chidren's Court.-(3) The Children's Court shall ensure that the child who is found to be in conflict with law is sent to a place of safety till he attains the age of twenty-one years and thereafter, the person shall be transferred to a jail:
Provided that the reformative services including educational services, skill development, alternative therapy such as counselling, behaviour modification therapy, and psychiatric support shall be provided to the child during the period of his stay in the place of safety."
11. Furthermore, after going through Sub-section-3 of Section-19 of the Act, it is evident that the Children Court has been empowered to pass appropriate order once it pronounces its verdict and so far sentence is concerned, Section-21 also takes care of and for that, Section 21 of the Act is quoted below:-
"21. Order that may not be passed against a child Patna High Court CR. APP (SJ) No.2117 of 2019(7) dt.09-07-2019 8/12 in conflict with law.-No child in conflict with law shall be sentenced to death or for life imprisonment without the possibility of release, for any such offence, either under the provisions of this Act or under the provisions of the Indian Penal Code or any other law for the time being in force."
12. In the background of presence of Special Court, to be the Court of Sessions Judge, having such wide power, allowing trial like an adult by an amendment really provides a privilege to a child in conflict with law (16 to 18 years) to seek the privilege under Section 12 of the Act. In order to scrutinize same, first of all, have a glance over Section 12 of the Act:-
"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:
Patna High Court CR. APP (SJ) No.2117 of 2019(7) dt.09-07-2019 9/12 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 sub-section (1) by the officer-in-charge of the police station, such officer shall cause the person to be kept only in an observation home 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 Patna High Court CR. APP (SJ) No.2117 of 2019(7) dt.09-07-2019 10/12 bail."
13. From perusal of the relevant provisions of the Act, it is abundantly clear that two distinct identity has been prescribed with regard to status of a child in conflict with law in consonance with the offence, being petty offence, serious offence, heinous offence. Whenever heinous offence is committed by a child falling in between 16 to 18 years of age and his mental status, being of full capability, proper understanding, due appreciation, grown up maturity followed with due assessment by the Board in accordance with Section 15 of the Act followed with an order in accordance with Section 18(3) of the Act, then in that circumstance, the trial is to be conducted by the Children Court in accordance with Section 19(1) of the Act where trial is to be sailed in accordance with the provisions enumerated under the Cr.P.C. with a certain barrier. So far infliction of sentence is concerned, the issue is to be guided by Sub-section-(1), (3) of Section 19 read with Section 21 of the Act. So, once the special status of a child in conflict with law has been identified and the trial is to be commenced and conducted in accordance with Cr.P.C., then in that circumstance, whether the child in conflict with law having a special status would be entitled for special privilege in accordance with Section 12 of the Act. It is needless to say that Patna High Court CR. APP (SJ) No.2117 of 2019(7) dt.09-07-2019 11/12 Section 12 deals with the power of the Board and not of the Children Court. Once the case has gone to Children Court, the procedure is to be followed in accordance with Cr.P.C. and that happens to be reason behind presence of Sub-section-5 of Section 101 of the Juvenile Justice Act. For proper appreciation, the same is quoted below:-
"101. Appeals.-(5) Any person aggrieved by an order of the Children's Court may file an appeal before the High Court in accordance with the procedure specified in the Code of Criminal Procedure, 1973 (2 of 1974)."
14. After having been declared child in conflict with law even relating to Buxar (T) P. S. Case No.235 of 2018, after rejection of prayer by the Children Court, the same has been challenged through Criminal Miscellaneous. Once the prayer of an accused has been entertained by the Co-ordinate Bench under Criminal Miscellaneous, then in that circumstance, whether an appeal in terms of Section 101(5) of the Act would be entertainable while enjoying the same status. The conflicting stand coupled with the order dated 05.02.2019 passed under Cr. Misc. No.4848 of 2019 gives an impression that the issue in hand needs authoritative pronouncement as, with great respect to the esteemed brother, I did not agree. So, the matter is to be considered by the Division Bench and for that, the following Patna High Court CR. APP (SJ) No.2117 of 2019(7) dt.09-07-2019 12/12 points are being formulated:-
a) Whether the child in conflict with law falling in between 16 to 18 years should be acknowledged, dealt with independently relating to serious offence, heinous offences.
b) Whether the opportunity in accordance with Section 12 of the Act identifying the Board to pass an appropriate order whenever child in conflict with law is produced regarding bail matter, could also include the Children Court.
c) Whether the procedure so allowed to be followed in accordance with Section 19(1) of the Act will attract the procedure of bail to be cared under the Act or under the Code. In the background of presence of Section(1) as well as Section 101(5) of the Act.
15. Accordingly, office is directed to place the matter before the Division Bench after taking permission from Hon'ble the Chief Justice.
(Aditya Kumar Trivedi, J) vikash/-
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