Orissa High Court
Saurav Pradhan vs State Of Odisha on 27 October, 2021
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.651 of 2019
Saurav Pradhan .... Appellant/
Petitioner
Mr. A.K. Mohanty, Advocate
-versus-
State of Odisha .... Respondent/
Opp. Party
Mr. A.K. Beura,
Addl. Standing Counsel
CORAM:
JUSTICE S.K. SAHOO
ORDER
Order No. 27.10.2021
I.A. No.1034 of 2020
20. This matter is taken up through Hybrid
Arrangement (Video Conferencing/Physical Mode).
This is an application under section 389 of Cr.P.C. for grant of bail.
Heard.
The appellant-petitioner has been convicted under sections 376(D)/341/342/323/354/354-B/354 (C)/395/506/292-A of the Indian Penal Code read with section 66 (E) of the Information and Technology Act and sentenced to undergo R.I. for twenty years and to pay a fine of Rs.5,000/- (rupees five thousand), in // 2 // default, to further undergo R.I. for six months for the offence under section 376-D of the Indian Penal Code, S.I. for one month for the offence under section 341 of the Indian Penal Code, S.I. for six months for the offence under section 342 of the Indian Penal Code, S.I. for six months for the offence under section 323 of the Indian Penal Code, R.I. for one year and to pay a fine of Rs.1000/- (one thousand), in default to suffer from further R.I. for two months for the offence under section 354 of the Indian Penal Code, R.I. for three years and to pay a fine of Rs.2000/- (two thousand), in default to undergo further R.I. for three months for the offence under section 354-B of the Indian Penal Code, R.I. for lthree years and to pay a fine of Rs.2000/- (two thousand), in default, to suffer from further R.I. for three months under section 354-C of the Indian Penal Code, R.I. for seven years and to pay a fine of Rs.5000/- (five thousand), in default, to undergo further R.I. for three months for the offence under section 395 of the Indian Penal Code, R.I. for two years for the offence under section 506 of the Indian Penal Code, R.I. for one year and to pay a fine of Rs.1000/- (one thousand), in default, to undergo further R.I. for three months for the offence under section 292-A of the Indian Penal Code, R.I. for two years for the offence under section 66-E of the Information and Technology Act and all the Page 2 of 12 // 3 // substantive sentences were directed to run concurrently by the learned Additional Sessions Judge, Angul in C.T. (S) No.06 of 2018.
Learned counsel for the petitioner submitted that when the case of the petitioner was before the Juvenile Justice Board, Angul, in terms of section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereafter '2015 Act'), preliminary assessment was conducted by the Board with regard to the mental and physical capacity of the petitioner to commit the offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence, and thereafter the Board found that the petitioner was seventeen years of age and he was well aware of the consequences of the crime which he allegedly committed and he was mentally and physically fit and accordingly, the Board transferred the case of the appellant to the Children's Court to conduct the trial as an adult in terms of section 18 (3) of 2015 Act.
It is further contended by the learned counsel for the appellant that the petitioner was released on interim bail as per the order of this Court on 15.04.2020 in I.A. No.1465 of 2019 and while granting interim bail, it was observed that the petitioner shall remain under the supervision of the local police during the period of interim bail and a Page 3 of 12 // 4 // report regarding his conduct shall be furnished to this Court after expiry of the period of interim bail. In pursuance of such order, the Legal -cum- Probation Officer, DCPU, Angul has submitted the report dated 21.10.2020 which indicates that the petitioner is a student of +3 commerce and studying in P.S.S.J. Degree college, Banarpal and he maintains study habits and devotes on his syllabuses of 5th semester and 6th semester of forthcoming examination which was scheduled to be held in 2021. The report further indicates that while the petitioner was in his house while he was on interim bail, he achieved his self reformation on his attitude, behavior and conduct and he maintained peace and harmony in the locality and the observations of the neighbours towards him was favourable and positive and his reaction towards discipline in home was also positive and constructive and he was maintaining discipline in his home and he was helping his mother in his household duties and the petitioner expressed his aim to be achieving in Post-Graduation course in the stream of Commerce. The overall behavour and conduct of the petitioner during interim bail period was found to be satisfactory.
It is argued by the learned counsel for the petitioner that there is no chance of early hearing of the appeal in the near future and the balance of convenience is in his favour. He placed reliance in the Page 4 of 12 // 5 // cases of Ranjit Paika -Vrs.- State of Orissa reported in (2018) 71 Orissa Criminal Reports 45, Trushna Behera @ Arya @ Ashu -Vrs.- State of Odisha reported in (2019) 79 Orissa Criminal Reports 801 and Chittaranjan @ Biswajit Sahoo - Vrs.- State of Orissa reported in 2018 (II) Orissa Law Reviews 377 and it is argued that as per the provisions under section 12 of the 2015 Act, the privilege is to be given to the petitioner in the matter of grant of bail and unless there are material before this Court that release of the petitioner is likely to bring him into association with any known criminal or expose to moral, physically or psychological danger or his release would defeat the ends of justice, the bail application should not be rejected. The learned counsel submitted that in the ends of justice, the bail application of the petitioner may be favourably considered.
Learned counsel for the State placed reliance on the decision of the Allahabad High Court in the case of Radhika (Juvenile) -Vrs.- State of U.P. reported in 2019 (3) Crimes 311 and argued that the victim has identified the petitioner in the T.I. parade and another witness i.e. P.W.6 has also identified the petitioner in the T.I. parade and therefore, there are strong evidence on record and the learned trial Court has rightly found the appellant guilty under the Page 5 of 12 // 6 // offences charged and in case the petitioner is allowed to be released on bail, the same would defeat the ends of justice. It is further submitted that since it is a serious offence, the bail of the petitioner should not be granted.
In the case of Ranjit Paika (supra), it is held as follows:-
"12.The rights of the juvenile has been placed on a high pedestal by the legislature and the procedure prescribed under the 2000 Act governs all cases concerning juveniles in conflict with law irrespective of the offence they are alleged to have committed as well as all children covered under the definition of 'children in need of care and protection'. Every aspect of the matter including detention, prosecution, sentencing, rehabilitation, restoration of a person who has not completed eighteen years of age has to be dealt with in accordance with provisions of the 2000 Act".
In the case of Chittaranjan @ Biswajit Sahoo (supra), it is held as follows:-
"7. The aforesaid provision is clear that the petitioner-CCL shall not be released on bail if in the event of release on bail, he is likely to be exposed to psychological or physically Page 6 of 12 // 7 // danger; if released on bail he would be exposed to hardened criminal and if his release would defeat the ends of justice, bail should not be granted. Except the above three circumstances, in rest of the matter, he should be released on bail. It should be remembered that consideration of bail for adult is completely different for a juvenile or CCL. For the adult, there may be certain circumstances to consider that in the event of release on bail, the accused may tamper with the prosecution evidence, he may abscond or the accused has got many cases against him or criminal antecedent etc. But here consideration of bail of a CCL is absolutely under the strict guidance of section 12 of the Act. In case of adult, the gravity of the offence is to be taken into consideration. But in the case of the CCL, the circumstance under which he committed the offence or whether he has conducive environment to get bail, but not the gravity of the offence in all cases".
In the case of Trushna Behera @ Arya @ Ashu (supra), it is held as follows:-
"In view of the proviso to sub-section (1) of section 12 of the JJ Act, the child in conflict Page 7 of 12 // 8 // with law can be denied the privilege of bail only if the Court is of the opinion that there appears reasonable grounds for believing that such child after release is likely to come in association with any known criminal or be exposed to moral, physical or psychological danger or that his release would defeat the ends of justice. It is not only the requirement on the part of the Court to record the reasons for denying the bail but also the circumstances that led to such a decision.
JJ Act is a beneficial legislation intended for reform of the juvenile/child in conflict with the law. The law demands that justice should be done not only to the accused but also the accuser. The Act has a solemn purpose to achieve betterment of the juvenile offenders. It has a reformative approach but does not completely shun retributive theory. Legislature has preserved larger interest of the society even in cases of bail to a juvenile. The Act seeks to achieve moral, physical and psychological betterment of juvenile offenders. If it is found that the ends of justice would be defeated or that goal desired by the legislature can be achieved by detaining a juvenile offender in a juvenile Page 8 of 12 // 9 // home, bail can be denied to him. The legislature in its wisdom has carved out exceptions to the rule of bail to a juvenile".
In the case of Radhika (Juvenile) (supra), it is held as follows:-
"32. This in fact is a dichotomy, whereby a juvenile delinquent is being released on bail except those above three conditions provided under Section 12(Proviso) of the Act, that too as a matter of right. On the other hand, they shall be tried as adults and could be awarded any sentence as per the discretion of the court provided under the law, except the life sentence and death sentence. This dichotomous situation could be resolved by taking the recourse of "object" of the legislation and Para 4 of the Statement of object and reasons, clearly mandates that the enactment of Juvenile Justice Act, 2000 was ill-equipped to tackle child offenders between the age group of 16-18 years and involved in heinous offences, like, murder, gang rape, solitary-rape, bride burning etc. and to resolve this impasse, the court holds that for the purposes of bail to the adolescent offender between the age group of 16-18 years, involved in the heinous offence like Page 9 of 12 // 10 // murder, solitary-rape, gang-rape, bride burning, drug trafficking, the beneficial legislation for the purposes of bail under Section 12 of the Act shall not apply in its present shape and format. It would be no more as a matter of right to such delinquent minor, who is involved in heinous offences. It is not possible to furnish exhaustive list of such offences but it definitely connotes the same meaning as defined in Section 2(33) of the Act. While deciding the bail of such delinquent offender ranging between the age group of 16-18 years would be discretionary upon the court, which shall in addition to those grounds provided under Section 12(Proviso) of the Act, also take into account with regard to his mental, physical capacity, ability to understand the gravity of that heinous offence, including their respective participation in the crime and the circumstances wherein he/they has/have allegedly committed that particular grave and serious offence. All these factors too are determinative factors while adjudicating the bail applications of juvenile offenders in the age group of 16-18 years, else it would be a mockery of legislation and the object of the Page 10 of 12 // 11 // present legislation would reduce to naught".
Considering the submissions of learned counsel for the respective parties, the nature of accusation against the petitioner, the age of the petitioner at the time of occurrence, the fact that the petitioner is a college student, the report furnished by the Legal
-cum- Probation Officer, DCPU, Angul as per the order of this Court and the fact that the petitioner has not flouted the terms and conditions of the interim bail order and further absence of any chance of early hearing of the appeal in the near future, I am inclined to release the petitioner on bail.
Let the appellant-petitioner be released on bail pending disposal of the appeal on furnishing bail bond of Rs.50,000/- (rupees fifty thousand) each with two local solvent sureties each for the like amount to the satisfaction of the learned trial Court subject to condition that the petitioner shall not indulge in any criminal activities while on bail. Violation of any terms and conditions shall entail cancellation of bail.
Accordingly, the I.A. is disposed of.
( S.K. Sahoo) Judge Page 11 of 12 // 12 // I.A. No.1466 of 2019
21. Heard.
There shall be stay of realization of fine amount imposed by the learned trial Court on the appellant- petitioner till disposal of the criminal appeal.
The I.A. is disposed of.
Urgent certified copy of this order be granted as per rules.
( S.K. Sahoo) Judge P Page 12 of 12