Madhya Pradesh High Court
Vinay Tiwari vs The State Of Madhya Pradesh on 27 July, 2018
-1- Cr.R. No.3125/2018
A.F.R
HIGH COURT OF MADHYA PRADESH, JABALPUR
Criminal Revision No. 3125 of 2018
Parties Name Vinay Tiwari, S/o Naval Kishore
Tiwari, aged about 17 years,
through natural guardian his
father Naval Kishore Tiwari, S/o
Shri Heeralal Tiwari, aged about
40 years, Occupation Private Job,
R/o Shiv Colony, Sarla Nagar,
Maihar, District Satna (M.P.)
-Versus-
The State of M.P. through Police
Station Maihar, District Satna
(M.P.)
Bench Constituted Hon'ble Shri Justice B.K.
Shrivastava
Order passed by Hon'ble Shri Justice B.K.
Shrivastava.
Whether approved for Yes/No
reporting
Name of counsels for parties For applicant : Shri V.K. Shukla,
Advocate.
For respondent/State : Shri
Neeraj Ashar, Panel Lawyer
Law laid down
Significant paragraphs
numbers
ORDER
(27.07.2018) This revision has been filed under Section 102 of Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as "Act, 2015"), on 02.07.2018 by Vinay Tiwari, through his -2- Cr.R. No.3125/2018 A.F.R natural guardian father Shri Naval Kishore Tiwari, S/o Shri Heeralal Tiwari against the order dated 25.06.2018 passed in Criminal Appeal No.91/2018 passed by Smt. Deepika Malviya, IV ASJ, Satna (M.P.).
2. By the impugned order the Court below has dismissed the appeal filed by the applicant under Section 101 of Act, 2015, which was filed against the order dated 20.06.2018 passed by Juvenile Justice Board.
3. It is an admitted position that the applicant was arrested on 16.06.2018 in connection with Crime No.325/2018, registered at Police Station Maihar, District Satna under Sections 363, 376(2)
(n), 347, 368, 354(2)/34 of IPC and Sections 3/ 4 and 7/ 8 of POCSO Act. He was produced before the Juvenile Justice Board and an application was moved under Section 12 of the Act, 2015, which was rejected on 20.06.2018. Thereafter the applicant filed a Criminal Appeal No.91/2018, which has been rejected by IV ASJ, Satna. It is also an admitted position that in this case there are two prosecutrix. The date of birth of first prosecutrix is 10.12.2001 and date of birth of second prosecutrix is 05.05.2002. The date of incident is 02.06.2018. Therefore, it is not in dispute that both the prosecutrix are girls below 18 years of age and come in the category of "child" under Section 2(12) of the aforesaid Act. It is also an admitted position that the applicant Vinay Tiwari, born on 15.08.2000, therefore, he was also under the age of 18 years on the date of incident i.e. 02.06.2018.
4. It is argued by the learned counsel for the applicant that the learned lower Court did not appreciate the material placed on record and not assigned any cogent and valid reason for rejection of the application. The applicant is a student of B.Sc 1 st year. He has not committed any crime. Therefore, he should be enlarged on bail by accepting the appeal.
5. On the other side, learned Panel Lawyer for the State strongly opposed the revision and submits that looking to the act of the -3- Cr.R. No.3125/2018 A.F.R accused the learned lower Court has not committed any mistake by rejecting the application of the applicant.
6. The appellate Court, IV ASJ, Satna dismissed the appeal by mentioning the ground that if, applicant will be released on bail then he will come in the contact of the absconding accused and it will harm his moral and physical physiological character.
7. Juvenile Justice (Care and Protection of Children) Act, 2015 has came into force since 12.01.2016. The provision for bail to the juvenile has been made in Section 12(1) of the aforesaid Act, which reads as under:-
"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:
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."
8. In the case of Hansraj Vs. State of M.P. 2005(2) ANJ (M.P.) 407, it has been held that if the conditions mentioned in Section 12 are not available then granting bail to the juvenile is mandatory. In this case juvenile was absconded about period of three months and it was argued that he was tried to get the bail. The Court has held as under:-
"The bail to the juvenile offender is mandatory. It can only be rejected on the ground enumerated under Section 12 of the -4- Cr.R. No.3125/2018 A.F.R Juvenile Justice (Care & Protection of Children) Act, 2000 (for short the 'Act'). The grounds of rejection under Section 12 of the Act are that if there appears reasonable ground for believing that the release is likely to bring him into association with any known criminal to expose him to moral, physical or psychological danger or that his release would defeat the ends of justice.
The applicant is a first offender. The conclusion of the Courts below that his case falls under Section 12 of the Act is based merely on the ground that there is a prima facie case against him and he was absconding for 3 months. The explanation of the applicant is that he was trying for the anticipatory bail and as such, he was arrested after the period of three months. The purpose of the provisions of Section 12 of the Act will be defeated if the bail of the juvenile offender is rejected without the reasonable ground and on surmises and in a casual manner."
9. In the case of Gadoo Vs. State of M.P. 2006(1) MPJR, short Note 35, it has been held that the Court should keep in mind the provision of Section 12 at the time of consideration of the application for bail filed by the juvenile. In this case the Court has mentioned as under:-
" .................... it is apparent that application for bail was dismissed by the trial court on factual matrix of the case and on appeal this order has been affirmed on the ground that on releasing him on bail the applicant would be involved in same activities and try to influence the prosecutrix who is residing in the same locality, but the provisions of Section 12 of the said Act was not considered in its actual spirits. .................... In view of aforesaid mandatory provisions of the Act only on certain grounds the bail application could have been dismissed which were not in existence in the case at hand. So the applicant ought to have been released on bail but the provisions were not considered with its real spirits. The grounds which has been put forth by the respondent for dismissing the revision have not appealed me. Even otherwise in the light of aforesaid cited cases on behalf of the applicant he is entitled to release on bail. Although the Rajendra Mishra's case (supra) was decided under the old Act, but the principle was laid down in view of mandatory provisions of the Act because there is no vast difference in between the old and new Act regarding -5- Cr.R. No.3125/2018 A.F.R provisions of bail to the juvenile. While the Ranjit Singh's case (Supra) was decided by considering the said section 12 of the new act and principle laid down in it is directly applicable to the case at hand."
10. In case of Hakam Vs. State of M.P. ILR 2011 MP.2237 , it has been mentioned that the bail to the juvenile is mandatory till the matter is not came under the category of 3 exception mentioned in Section 12. The Court has observed as under:-
"It is well settled legal position that once a person is held to be a juvenile delinquent, then Section 12 of the Act, 2000 would govern the question of grant of bail and custody of juvenile and it will not be governed by the provisions of the Code of Criminal Procedure, 1973.
The position of law with regard to grant of bail to a juvenile under Section 12 of the Act, is clear that a juvenile has to be released on bail mandatorily unless and until the exceptions carved out in the section itself are made out. The first exception is a reasonable ground for believing that the release is likely to bring the juvenile into association with any known criminal. The second exception is that the release of the juvenile is likely to expose him to any moral, physical or psychological danger. Both these exceptions are not made out because there is no material available in the record of the case to suggest any such association or exposure. The third exception is that the release of the juvenile would defeat the ends of the justice.
The impugned order is based on the serious nature of the offence as well as the release of the petitioner not being in the interest of justice. The nature of the offence is not one of the conditions on which bail can be granted or refused to the juvenile. Bail, in respect of a juvenile, has to be considered purely under the parameters of Section 12 of the Act which requires bail to be granted mandaorily unless the court feels that the release of the juvenile is likely to bring him in the association of any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice."
11. In the case of Rahul Vs. State of M.P. 2011 (4) MPHT 113 the Court considered the case of Rajkumar Vs. State of M.P. 2008(1) MPWN. 94 and said that the gravity of offence cannot be -6- Cr.R. No.3125/2018 A.F.R made the sole ground for rejection of the bail of juvenile. In this case the Court has held as under:-
"In the case of Raj Kumar v. State of M.P., 2008 (I) MPWN 94, it has been held that,- the bail application of juvenile cannot be rejected on the ground of seriousness of crime. There was no ground of believing that he will come into association of known criminals the bail granted to the juvenile. The similar view was adopted in the case Rahul Mishra v. State of M.P., 2001 (I) MPWN 76. Since there is no criminal history against the applicant and there is no legible ground to believe that he will come into association of known criminal the applicant is entitled for bail."
12. The same principle has been reiterated in Ritesh Vs. State of M.P. 2011 (4) MPLJ 226. This case was related to Section 307 of IPC and Section 25 and 27 of Arms Act. The High Court observed as under:-
"What is discernible from Section 12 of Juvenile Justice (Care & Protection of Children) Act, 2000 governing bail to a juvenile is that a juvenile in conflict with law should normally be granted bail unless his case falls within one of the exceptions engrafted thereunder and those exceptions are that there appears to be reasonable grounds for believing that his 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 otherwise defeat the ends of justice. Unless the aforesaid rider is satisfied, bail to a juvenile should not be refused. It is significant to note that the gravity of the offence or its seriousness alone, divorced from the above exceptional reasons , has not been taken as a rider by the legislature to deny bail to a juvenile in conflict with law. It is only when there is danger to his moral, physical or psychological qualities or likelihood of his attaching himself with criminals or that his release may otherwise defeat the ends of justice, the Board or the Court may not exercise discretion in his favour and enlarge him on bail. For such a determination, no hard and fast rule of inflexible nature can be laid down as it depends on the facts and circumstances peculiar to each case.
In the opinion of this Court, the Juvenile Justice Board may be justified in denying bail to a juvenile involved in a heinous crime only if there is material before it to form a prima facie opinion -7- Cr.R. No.3125/2018 A.F.R on the aspects carved out as exception to rule of bail in section 12 of the Act itself. There must be some mechanism with the Juvenile Justice Board to gather material and form an opinion as to whether the juvenile need to be denied bail by bringing his case under the exceptions to bail engrafted in section 12. The opinion to be formed by the Board, by no means, can be subjective and has to be objective. Either the prosecution should place some prima facie material before the Board or the Court to show that release of a juvenile on bail may expose him to moral, physical or psychological danger or the Board may obtain a report from the Probation Officer attached to the Board regarding antecedents and circumstances attended to the juvenile, both pre and post crime and it is only thereafter the Board or the Court should crystallise its opinion regarding release or non- release of the juvenile on bail, though involved in a heinous crime. A reference to the statutory provisions governing bail to a juvenile contained in section 12 would show that there is a mandate of law that the juvenile has to be released on bail, except only in those cases where the case falls in one or the other exception engrafted by the legislature in section 12 itself."
13. Therefore, looking to the aforesaid legal position it can be said that the release of juvenile on bail is his right. The release on bail of such person may be refused where there appears reasonable ground to believe that the release is likely to bring the person into the association with the unknown criminal or expose the said persons to moral physical or psychological danger or the person would defeat the ends of justice.
14. Now we look into the facts of this case. The complainant Rajkumar lodged the missing person report on 06.06.2018 at Police Station Maihar, District Satna (M.P.). Upon this report Crime No.325/2018 under Section 363 of IPC was registered. As per this report the daughter of the complainant aged about 17 years and daughter of Gayaram Pal aged about 16 years had gone at about 11:00 am on 02.06.2018 to collect the books from the resident of their friend, but they did not return. The complainant and other persons searched near about place but could not trace out both the girls. Thereafter both girls recovered on 13.06.2018. The statements of -8- Cr.R. No.3125/2018 A.F.R both the prosecutrix have been recorded by the police under Section 161 of Cr.P.C and also recorded by JMFC Amarpatan, District Satna on 18.06.2018 under Section 164 of Cr.P.C.
15. It appears from the statement of both the girls and also from the evidence collected that the applicant and co-accused Shivam were following both the prosecutrix since 2 years back. They pressurized the girls to leave their home. Thereafter on 02.06.2018 upon instructions of accused, both the girls left their home and reached at railway station Maihar. Both the accused also reached there. Thereafter Sachin took the ticket upto Bhusawal by Janta Express. They also gave mobile phone in which sim was inserted which belongs to accused Sachin and Shivam was owner of the mobile. Thereafter they reached Bhusawal and again upon instructions of the accused they reached Surat where Shivam met them. From Surat, Shivam call his cousin brother Mahesh who took both the girls to Balsada and thereafter Daman. The girls were kept in the house of Mahesh in Daman. It is also alleged that both the accused and Mahesh committed sexual act with both the prosecutrix. One day one prosecutrix heard talking of Mahesh who was talking with unknown person regarding two girls and asking that how much money will get if he reach Nepal with the aforesaid two girls. After hearing the plan of same, the prosecutrix call her cousin brother Shanker Pal, who was residing in Gujrat. Thereafter Shanker Pal took back both the prosecutrix. Both the prosecutrix are minor. Their consent regarding intercourse is immaterial. Both the accused committed sexual intercourse and took them upto Surat. Thereafter, they handed over them to Mahesh who took them to Daman and accused Mahesh tried to sell out both the girls by sending them to Nepal.
16. Offence has been registered under Sections 363, 366, 376(2)(n), 368, 147, 354(2)/34 of IPC. As per Section 15(1) read with Section 18(3) as defined in Section 2(33) of the Act, 2015, in a case of heinous offence, if the juvenile is between 16 to 18 years the Court may sent such case for trial to the Children Court.
-9- Cr.R. No.3125/2018A.F.R
17. As per 15-A of the Act, 2015 it is the duty of the trial Court to make assessment of heinous offence in which juvenile has committed a heinous offence and completed the age of 16 years. The Board shall conduct the preliminary assessment with regard to his mental and physical capacity to commit such offence, availability to understand the consequence of the offence and the circumstances in which the alleged offence is committed and thereafter the Board may pass an order as per sub Section 3 of Section 18 of the Act, 2015. As per said provision the Board is required to pass an order to try the case by Children Court having jurisdiction to try such offence.
18. Whether matter came under the perview of exception of Section 12 or not ? This question may be decided upon the basis of circumstances of the case. Because direct evidence is impossible, the Court can draw the conclusion upon the basis of material available on the record, the manner in which the crime is committed and upon the basis of the report of Probation Officer etc.
19. In this case report of Probation Officer dated 20.06.2018 is on record. As per aforesaid report the Probation Officer mentioned that the applicant is a disobedient (vuq'kklughu). It is also reported that "fd'kksj ij laxr dk vlj gS ". Therefore, looking to the aforesaid report, it cannot be said that the report is supported to the applicant. On the other hand, it can be said that the applicant is in contact with other persons, who are not the man of strong/good character/reputation.
20. The manner in which the crime has been committed is also shows that different position. The accused was in contact with co- accused Mahesh (resident of Daman) who made a plan to sell out the girls after sending them to Nepal. Therefore, it may be presumed that the applicant is in the contact of such persons who are involved in sex trading business, in which they any how collected the girls from the different places of country and sell out them in Nepal. The date of birth of the accused is 15.08.2000, it -10- Cr.R. No.3125/2018 A.F.R means he is near about the age of 18 years, therefore, it may also be presumed that he is capable to understand the act done by him.
21. Therefore, in this case restrictions mentioned in Section 12 are attracted. Looking to the aforesaid situation it can be very well understand that if the accused will released on bail, he will definitely come into the contact with the known criminals and it will be harmful to his moral and physical character and the release will defeat the ends of justice. Therefore, the Juvenile Board as well as IV ASJ, Satna have not committed any error by rejecting the applications/bail. Hence this revision petition having no force, therefore, dismissed.
(B.K. Shrivastava) Judge Vin** Digitally signed by VINOD SHARMA Date: 2018.07.30 13:21:27 +05'30'