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Madhya Pradesh High Court

Kamlesh Gurjar vs The State Of Madhya Pradesh on 20 March, 2019

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 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
                       M.Cr.C. No.10345 of 2019
                     Kamlesh Gurjar Vs. State of M.P.


Miscellaneous Criminal Case No.10345 of 2019

Indore, Dated:- 20/03/2010
      Shri Gaurav Singh Chauhan, learned counsel for the
petitioner--Kamlesh Gurjar S/o Satpal Gurjar.
      Shri   R.    S.    Darbar,        learned     counsel   for   the
respondent/State.

Shri Ravi Verma, learned counsel for the objector.

1. The petitioner, who apprehends arrest for the offences punishable under Sections 307/34 of IPC, in Crime No.67 of 2019, registered at Police Station Deopalpur, Indore has moved this petition for granting bail in anticipation of arrest.

2. Facts, in brief, are that there was old rivalry between two families of village Khatwadi. A murder took place in the year 2005 for which the complainant and his family members were prosecuted and sentenced for life. After getting suspension in the year 2016, they decided to dispose off their land, leave the village forever and to settle down at some other place, but whenever they tried to sale their land, their opponents used to scarify the proposed buyers. On 26.02.2019 also when the complainant with his cousin took the proposed buyer of Indore with broker Malkhan to show the land, the petitioner along with some other co-accused persons terrified the buyers and asked them to leave the village. Startled by their threat, Malkhan and the proposed buyers left the village and they were going toward their house, the petitioner alongwith other co- accused persons assaulted them and with intent to kill, caused them injuries. Kalu lodged FIR naming the petitioner alleging 2 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE M.Cr.C. No.10345 of 2019 Kamlesh Gurjar Vs. State of M.P. that he instigated Sahdeo to shoot them. Sahdeo fired gut shot but Kalu ducked and could avoid injury.

3. Now, the petitioner is before this Court. Besides merits, the petitioner has claimed bail on the ground of juvenility. It is submitted that on the date of the incident, he was 17 year old, therefore, he be granted anticipatory bail.

4. The learned Public Prosecutor has strongly opposed the relief sought for by the petitioner.

5. I have heard the counsel appearing on either side and perused the records.

6. According to Section 4 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as the 'Act'), a duly constituted Juvenile Justice Board shall have the powers conferred by the Code of Criminal Procedure, 1973 to consider the case of the petitioner. More particularly, Section 12(1) of the Act confers powers to Juvenile Justice Board to grant bail to a 'child', who is an accused of a bailable or non- bailable offence.

7. For the sake of convenience and ready reference Section 12(1) of the Act, is reproduced below:-

Section 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 office or under the care of any fit person:

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, 3 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE M.Cr.C. No.10345 of 2019 Kamlesh Gurjar Vs. State of M.P. 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 bail."

8. It is manifest that the above provision provides certain specific conditions for consideration for releasing a 'child' who is accused of a bailable or non-bailable offence, and the said authorization begins with non obstinate clause "notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law for the time being in force." According to Subsection (1) of Section 12 of the Act, a child shall be released on bail with or without surety notwithstanding anything contained in the Code of Criminal Procedure, 1973 or in any other Law for the time being in force. The provision appears to be mandatory in nature for release of a 'child' on bail.

9. A Juvenile Justice Board has been constituted under Section 4 of the Act to deal exclusively with all proceedings in respect of children in conflict with law. Sub Section (1) of Section 4 is relevant here, which is as followed:

HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE M.Cr.C. No.10345 of 2019 Kamlesh Gurjar Vs. State of M.P.

4. Juvenile Justice Board.--(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the State Government shall, constitute for every district, one or more Juvenile Justice Boards for exercising the powers and discharging its functions relating to children in conflict with law under this Act.

10. A conjoint reading of both Sections 4 and 12 of the Act reveals that to deal with all the proceedings in respect of juvenile, including bail, Juvenile Board, constituted exclusively for this purpose, is the appropriate authority. The Act envisages that the powers conferred on the Board by or under this Act can be exercised by the High Court and the Court of Sessions, only when the proceeding comes before them in appeal, revision or otherwise. Section 52 of the Act gives right to a juvenile, who is accused of any bailable or non-bailable offence, to file appeal against the order of refusal of bail by the Board and Section 53 of the Act provides that he can also file revision against any order passed by the competent authority or by Sessions Court before the High Court.

11. The Act, 2015 further makes it clear that bail plea of a juvenile can only be entertained when he is arrested or detained or appears or is brought before the Board, and not otherwise. In fact, no provision in the Act or in the Code of Criminal Procedure enables the juvenile to move an application for anticipatory bail either before the Court of Sessions or High Court or even before the Board, which has been exclusively constituted for the purpose of dealing with the proceedings pertaining to a juvenile. Reason appears behind this is that the Act makes the bail a rule and jail an exception.

HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE M.Cr.C. No.10345 of 2019 Kamlesh Gurjar Vs. State of M.P.

12. The issue regarding anticipatory bail of a Juvenile has been dealt with by this Court in para 16, 21 to 23 of Satendra Sharma v. State of Madhya Pradesh MCRC No. 4183 of 2014, dated 8.7.2014, which are as under:

16. On bare perusal of this provision, it is clear that the bail application of a juvenile can be entertained by the Board only when he is arrested or detained or appears or is brought before the Board otherwise application cannot be entertained. If the juvenile is arrested or detained or appears or is brought before the Board then certainly bail application will be filed under Section 12 and the same be decided by the Board only but not by the High Court or Court of Session as discussed above.

21. The anticipatory bail can be granted in anticipation of arrest but such proceedings are not inserted in the Act. The only provision for bail of Juvenile is given under Section 12 of the Act which has been discussed as above.

22. In view of the aforesaid discussion, this Court is of the view that application for grant of anticipatory bail preferred by the juvenile cannot be entertained by the High Court or the Court of Session by applying the provision contained under Section 6(2) of the Act. The powers conferred on the Board can be used by High Court and the Court of Session only when proceedings come before them in appeal, revision or otherwise except under Section 438 and 439 of Cr.P.C. Therefore, I respectfully disagree with the interpretation made by the learned Single Judge of the Hon. Rajasthan High Court and Hon. Chhattisgarh High Court.

23. Accordingly, application for grant of anticipatory bail by the applicant is hereby dismissed. ....

13. In Kapil Durgawani v. State of Madhya Pradesh reported in 2010 (IV) MPJR 155, the High Court of Madhya Pradesh has held that even the Juvenile Board has no jurisdiction to entertain anticipatory bail application. Relevant portion of the decision is extracted as under:

HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE M.Cr.C. No.10345 of 2019 Kamlesh Gurjar Vs. State of M.P. ''Provisions of Section 12 of the Act, 2000 do not provide such powers to the Board which is equivalent to Section 438 of Cr.P.C. The Board has no jurisdiction to entertain application under Section 438 of Cr.P.C."

14. Similar view is taken by the High Court of Chattisgarh in Preetam Pathak v. State of Chattisgar in MCRC (A) No. 1104 of 2014 and it has held as under:

7. A close and careful perusal of Section 12 of the Act, 2000 would show that an application for bail of juvenile would be entertainable by the Board only if he is arrested and brought before the Board where he is accused of bailable or nonbailable offences and the condition precedent to the juvenile would be, he is arrested or detained or appears or is brought before a Board, then only his application filed under Section 12 of the Act, 2000 shall be decided by the Board.

Apart from Section 12 of the Act, 2000, there is no other provisions in the Act, 2000 like Section 438 of Cr.P.C. giving powers to the Board to grant anticipatory bail to the juvenile and thus, power and jurisdiction to grant anticipatory bail has not been conferred to the juvenile Justice Board, and therefore, the provisions contained in Section 438 of Cr.P.C. cannot be exercised by this court or court of session to grant anticipatory bail to the juvenile by virtue of provisions contained in Section 6(2) of the Act, 2000.

8. The aforesaid question came to be considered before the High Court of Madhya Pradesh in case of Kapil Durgawani v. State of Madhya Pradesh, in which, after consideration it has been held that provisions of Section 12 of the Act, 2000 do not provide such power to the Board which is equivalent to Section 438 of Cr.P.C. and the Board has no jurisdiction to entertain application under Section 438 of Cr.P.C. by holding as under:

"Provisions of Section 12 of the Act, 2000, do not provide such powers to the Board which is equivalent to Section 438 of Cr.P.C. The Board has no jurisdiction to entertain application under Section 438 of Cr.P.C."

15. Again similar view was reiterated by MP High Court in case of Sandeep Singh Tomar V. State of M.P. Passed in M.Cr.C. No.9816 of 2013, decided on 10th March, 2014.

HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE M.Cr.C. No.10345 of 2019 Kamlesh Gurjar Vs. State of M.P.

16. Therefore, in my considered opinion, in absence of specific provisions in the Act, 2015, juvenile is not entitled to move application under Section 438 of Cr.P.C.

17. In view of the foregoing discussion, the application filed Section 438 of Cr.P.C. for anticipatory bail is dismissed as not maintainable in law (Virender Singh) Judge pp/-

Date: 2019.03.23 14:56:45 +05'30'