Kerala High Court
Afsal Ibrahim vs State Of Kerala
Author: S.S.Satheesachandran
Bench: S.S.Satheesachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN
MONDAY,THE 23RD DAY OF SEPTEMBER 2013/1ST ASWINA, 1935
Bail Appl..No. 6006 of 2013 ()
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CRIME NO. 946/2013 OF NOORANADU POLICE STATION , ALAPPUZHA
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PETITIONER/7TH ACCUSED:
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AFSAL IBRAHIM, AGED 17 YEARS, S/O.IBRAHIMKUTTY,
MULLAKULATHYKUTTIYIL KIZHAKKATTIL,
KAPPILKIZHAKKUM MURI, KRISHNAPURAM VILLAGE,
ALAPPUZHA DISTRICT, REP. BY HIS FATHER IBRAHIMKUTTY
MULLAKULATHYKUTTIYIL KIZHAKKATTIL,
KAPPILKIZHAKKUM MURI, KRISHNAPURAM VILLAGE,
BY ADV. SRI.A.SHAFEEK (KAYAMKULAM)
RESPONDENT/COMPLAINANT:
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STATE OF KERALA,
REPRESENTED BY THE SUB INSPECTOR OF POLICE,
NOORANADU POLICE STATION,
ALAPPUZHA DISTRICT THROUGH PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SMT.LALIZA T.Y.
THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 10-09-2013
THE COURT ON 23-09-2013,PASSED THE FOLLOWING:
PJ
S.S.SATHEESACHANDRAN,J.
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B.A. No. 6006 of 2013
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Dated, this the 23rd day of September, 2013
ORDER
Petitioner is a juvenile in conflict with law who is proceeded as one among the accused in a crime involving the offence under section 364A r/w 34 IPC. Application for his release on bail moved by his father had been turned down by the juvenile Justice Board vide Annexure 4 order. Petitioner has therefore moved this application under section 439 of the Code of Criminal Procedure, for short the Code for his release on bail.
2. A preliminary objection was raised by the registry over the entertainability of the petition. I have ordered for numbering the B.A.6006/2013 2 petition to consider the objection raised later, and, accordingly, the petition has been numbered.
3. Objection was raised by registry on the premise that a juvenile cannot be called upon to execute a bond and hence his bail application would not lie before this court. Section 441 of the Code no doubt mandates execution of a bond by accused and his sureties for his release on bail. However it has to be noted that where the accused is a minor no bond need be executed by him and the court can accept a bond executed by his sureties. Section 448 of the Code is an exception relieving the minor from the rigour of executing a bond as mandated under section 441 referred to above. Further more, so far as the release of a juvenile in conflict with law on bail provisions of the Juvenile Justice(Care and Protection of Children) Act,2000, hereinafter referred to as the Act, shall prevail over the provisions of the Code as spelt B.A.6006/2013 3 out by sub section (4) of Section 1 of that Act which reads thus:-
"Notwithstanding anything contained in any other law for the time being in force, the provisions of this Act shall apply to all cases involving detention, prosecution, penalty or sentence of imprisonment of juveniles in conflict with law under any such law."
Bail to juvenile in conflict with law is governed by Section 12 of the Act which provides for his release on bail with or without surety. So much so the objection that juvenile cannot be called upon to execute a bond, on his release on bail is totally irrelevant and that does not impinge his right to seek bail or anticipatory bail as provided by law. I hold that the petition for bail moved by juvenile in conflict with law for his release on B.A.6006/2013 4 bail under section 439 of the Code of Criminal Procedure is entertainable and it has to be disposed on its merits.
4. Crime in which petitioner is proceeded as accused (A7) relates to the alleged abduction of one Akash, aged 20 years, for ransom. Allegation is that A1 to A4 in the crime abducted him from Madurai where he studied in a college, brought him in a vehicle to Nooranad and demanded ransom of Rs.85,000/- for his release from his father, defacto complainant, contacting him over the phone. The other accused in the crime (A5 to A8) had been engaged either to watch the presence of police or to travel with the abducted victim in a vehicle to the spot fixed for collecting the ransom from the de facto complainant, is the further allegation. De facto complainant who was contacted over phone for ransom by one of the abductors informed police of the abduction and thereupon spot fixed for B.A.6006/2013 5 collecting ransom was kept under surveillance. Victim abducted was brought in a vehicle by some of the accused, including A7, to the above spot and, then, noticing the presence of police there they escaped in the vehicle with the victim and kept the victim in illegal confinement till he was later released by police while transported in a motor vehicle by his abductors. Driver of the above vehicle was apprehended by police, but, one among the abductors (A1) who was in that vehicle with the victim ran away and made his good escape. A1 was arrested by police the next day and now he continues in judicial custody. Petitioner (A7), juvenile in conflict with law, allegedly, involved in the crime, was arrested on 14.8.2013. He was produced before the Juvenile Justice Board, which ordered for keeping him in the Observation Home, and it continues.
5. I heard learned counsel for petitioner and B.A.6006/2013 6 also learned Public Prosecutor.
6. Learned counsel for petitioner submitting that petitioner is innocent urged for his release on bail. He is prepared to abide by any condition imposed by this court and also willing to co- operate with the investigation of the crime, is the further submission of counsel. Father of the petitioner is ready and willing to stand as surety for him and also furnish an undertaking that he will not get involved in criminal activities or associate with any criminal, is the submission of counsel. Petitioner is a student and also a NCC Cadet submits the counsel relying on Annexure 2 and 3 produced with the petition. His application for release on bail moved twice had been turned down by the Juvenile Justice Board by Annexure 4 and 5 Orders without application of mind and also not taking into account the relevant factors governing release on bail on juvenile in conflict with law, B.A.6006/2013 7 is the submission of counsel.
7.Other than the first accused and petitioner (A7) rest of the culprits involved in the crime is still at large, is the submission of learned Public Prosecutor. Crime registered over the abduction of Akash proceeded against eight accused persons, but, now investigation is continuing only against six of them, submits learned Public Prosecutor. Involvement of petitioner juvenile in the grave offence of abduction has been revealed by materials gathered in the investigation and if released on bail petitioner is likely to tamper with the evidence and also threaten the witnesses, is the objection canvassed by learned Public Prosecutor to oppose his release.
8. Case Diary has been produced for my perusal. Allegation imputed against petitioner is that he also joined with the abductors of victim when the victim was taken in a motor vehicle to B.A.6006/2013 8 collect the ransom and noticing the presence of police all of them escaped with the vehicle. Petitioner, aged 17 years, associated with the other accused in the abduction of victim, and against one among the accused, it is alleged, several crimes are registered for various penal offences at different police stations. Allegations imputed and facts and circumstances present in the case give room to suspect complicity of petitioner with the other accused in the offence alleged. However, in considering application for bail of a juvenile in conflict with law when he is proceeded as an accused and kept in an Observation Home, normally, the rule is to release him on bail with or without surety except where it is shown there are reasonable ground to hold that his release would bring him into association with any known criminal or expose him to moral, physical or psychological danger, or his release would defeat B.A.6006/2013 9 the ends of justice. His application for bail was turned down by the Juvenile Justice Board vide Annexure 4 order holding that there is reason to believe that his release is likely to bring him into association with known criminals or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice. After Annexure 4 order his second application had been disposed 12 days later vide Annexure 5 order stating the very same reason. Juvenile Justice Board as seen from Annexure 4 and 5 Orders formed the above conclusion on perusal of records of the case and also report filed by the investigating officer.
9. Petitioner in the present case was arrested on 14.8.2013 and his second application for bail had been declined vide Annexure 5 Order dated 29.8.2013. Section 13 of the Act mandates that soon after the arrest of juvenile information of B.A.6006/2013 10 his arrest has to be given to his parents or guardian of the juvenile directing him to be present at the Board before which the juvenile will be produced. The officer in charge of the police station or the special juvenile police unit to which the juvenile is brought has also to inform the probationary officer of his arrest to enable him to obtain information regarding the antecedents and family background of the juvenile. The object behind the above prescription under section 13 of the Act is to protect and safeguard the interest of juvenile in conflict with law right from the moment any criminal proceeding is initiated against him. Information is given to the Probationary Officer over the arrest of a juvenile to get necessary information regarding his antecedents not for the purpose of inquiry alone that has to follow if any indictment is made on completion of investigation but for other matters B.A.6006/2013 11 also including the question whether his release on bail is prevented by special circumstances referred to in Section 13 of the Act. In the context what is the general principle governing grant of bail to a juvenile as covered under section 12 of the Act assumes much significance. That section reads thus:-
"Bail of juvenile--(1) When any person accused of a bailable or non-bailable offence, and apparently a juvenile, is arrested or detained or appears or is brought before a Board, such person shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973(2 of 1974) or in any other B.A.6006/2013 12 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 institution or fit person) but he shall not be released if there appear 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 that his release would defeat the ends of justice. (Sub section (2) B.A.6006/2013 13 and (3) not required and omitted) Normal rule as spelt out by sub section (1) of Section 12 of the Act is that the juvenile in conflict with law is to be released on bail with or without surety or placed under the supervision of Probation Officer or under the care of institution or fit person except in cases where the Board has reason to believe that his release would bring him into association with any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice.
10. The Board in the present case, evidently, has not conducted any inquiry calling for report from the Probationary Officer or with the father of juvenile, who moved the application for his release on bail, in forming an opinion that the juvenile cannot be released on bail on the grounds mentioned under Annexure 4 and 5 Orders. That B.A.6006/2013 14 conclusion evidently has been formed solely on the basis of records of the case and report of the investigating officer. So far as the criminal antecedents of the petitioner, juvenile in conflict with law, or his family background, nothing on record has been brought for consideration of the Board while it disposed his application for bail. No doubt the gravity of the offence imputed against him and case records produced disclosing his complicity, if any, in the crime, is a very pertinent matter whether his release would defeat the ends of justice. However, it is to be noted that justice system as available to adult cannot be extended to and applied to delinquent juvenile. That is the reason why separate system known as 'juvenile justice' has been carved out for the care, protection, development and rehabilitation of neglected or delinquent juvenile. Rehabilitation and social integration of a juvenile in conflict B.A.6006/2013 15 with law is the outlook of the Act and when that be so keeping the juvenile in conflict with law for long period till the inquiry is over unless there is sufficient justifiable reason to do so may cast a stigma on him and also affect his development and needs.
11. Petitioner in the case is stated to be a student and his father has come forward to get him released on bail undertaking that he will not involve in any criminal activities till he continues on bail. Social investigation report sent to this Court by probation officer is favourable to juvenile for his release on bail. That report does not indicate of any special circumstance to decline him bail. Having regard to the above report and facts and circumstances involved in the case, and also the period of detention eversince his arrest on 14.8.2013, I find petitioner can be released on bail at this stage. B.A.6006/2013 16
Petitioner is directed to be released on bail subject to the following conditions.
1) Petitioner is placed under supervision of the probationary officer, who shall file periodical reports over the Juvenile before the Board till the inquiry against him is completed in the proceedings.
2)Father of petitioner shall stand as a surety for release of petitioner on bail. He shall execute a bond for Rs.10,000/-
undertaking good conduct of juvenile and also his keeping away or associating with criminals while he continues on bail in the present proceedings.
3) Petitioner and his father shall B.A.6006/2013 17 report before the Juvenile Justice Board as and when directed without default till the proceedings are over.
4)In the event of any adverse report filed against the juvenile by the probation officer or on any default or violation of the condition imposed above, it is open to the Juvenile Justice Board to revoke the bail granted to petitioner without any further orders from this court, but, in accordance with law.
S.S.SATHEESACHANDRAN JUDGE tpl/-