Madhya Pradesh High Court
Child Conflict vs The State Of Madhya Pradesh on 23 September, 2024
Author: Dinesh Kumar Paliwal
Bench: Dinesh Kumar Paliwal
NEUTRAL CITATION NO. 2024:MPHC-JBP:50218
1 CRR-3406-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DINESH KUMAR PALIWAL
ON THE 23rd OF SEPTEMBER, 2024
CRIMINAL REVISION No. 3406 of 2024
CHILD CONFLICT WITH THE LAW
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri M. Shafiqullah - Advocate for the applicant.
Shri Krishna Kumar Verma - Panel Lawyer for the respondent/State.
None for the victim despite service of notice.
ORDER
This revision petition has been preferred under Section 102 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as "J.J. Act, 2015") read with Section 397/401 of Cr.P.C. assailing the appeal judgment dated 08.04.2024 passed by the IInd Additional Sessions Judge, Raisen (MP) in Criminal Appeal No.38/2024, whereby the appeal preferred by juvenile in conflict with law against the order dated 06.03.2024 passed by the Principal Magistrate, Juvenile Justice Board, Raisen, District Raisen (MP) has been dismissed and order rejecting the bail application of the juvenile in conflict with law in relation to FIR bearing Crime No.25/2024 of Police Station Umraoganj, Raisen (MP) for commission of offence under Sections 376-D, 506 of IPC, has been affirmed.
2. As per the allegations, on 04.02.2024, 29 years old prosecutrix submitted an application in writing before police stating that she is resident of Ward No.18, Signature Not Verified Signed by: ASHISH KUMAR JAIN Signing time: 10/1/2024 7:05:33 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:50218 2 CRR-3406-2024 near Dargah, District Raisen. She is labourer and also works as domestic help. It is alleged that on 03.02.2024, she alongwith her husband & 3 years old child had to go Jhansi. Train was due to depart from Habibganj Station, Bhopal at around 09:30 pm. Her husband left home early by bus to reach Habibganj Station. When she after dropping her children to her parents house, alongwith her 3 years old child reached Habibganj Station by another bus, train had already left the station but her husband left for Jhansi by the said train. At around 11:00 pm, she alongwith her minor child came out of the railway station and hired one auto for going to Padariya and the fare was fixed Rs.500/-. Auto driver and one of his companion were sitting in the auto. They left Habibganj Railway Station for Padariya. On the way, one another companion of auto driver met and he also sat in the auto. It is alleged that at Bhopal by-pass, the person who was sitting on the rear seat started to drive auto and the auto driver came in the back seat and sit by her side. After sometime, both the persons who were sitting by her side started to press her breast. When she asked them to stop the auto stating that she has not to go with them in the auto, they by extending threat said her mum and one of them snatched her minor son from her and handed-over to the person who was driving the auto. Despite her raising noise, they did not stop auto and took her near Tediya Bridge, Raisen-Bhopal Road and they both repeatedly committed rape upon her. Thereafter, all the three persons leaving her, fled away towards Bhopal side. After sometime, she stopped one 407 vehicle and made a call to his brother Dhaniram, who by motor-cycle reached there and took her to Padariya. She narrated entire story to her parents. FIR was registered. After investigation, charge-sheet has been filed.
3. Child in conflict with law at time time of commission of offence was found to be 16 years old in age. The charge-sheet was filed before the Juvenile Justice Signature Not Verified Signed by: ASHISH KUMAR JAIN Signing time: 10/1/2024 7:05:33 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:50218 3 CRR-3406-2024 Board. The social investigation report was called, wherein, it was observed by the Probationary Officer that juvenile in conflict with law is aged about 16 years. He has lost his father seven years ago. He is in habit of consuming excessive liqour. He is uneducated and his company is not good. He is in company of notorious persons and is in habit of taking drugs, liqour and smoking cigarette. The juvenile in conflict with law is in observation home since 06.02.2024 and in this period, his behaviour is found positive, normal and he is disciplined.
4. An application under Section 12 of the J.J. Act for grant of bail to juvenile was filed before the Juvenile Justice Board, but same was declined. Thereafter, an appeal was preferred on behalf of juvenile before the Court of Sessions. Learned IIn d Additional Sessions Judge, Raisen by the impugned appeal judgment has dismissed the appeal on the ground that in the social investigation report, it is not shown whether the family condition of the juvenile in conflict with law are normal or not and his parents are not having effective control over him. In report, though, the applicant is not found to be drugs and liquor addict, but the incident had taken place in the company of co-accused persons which shows that if he is released on bail possibility of his coming into association with any known criminal, or expose him to moral, physical, or psychological danger cannot be ruled out and his release would defeat the ends of justice.
5. Learned counsel for the applicant has submitted that at the time of commission of offence, juvenile was aged about 16 years of age (i.e. below 18 years of age). He has no criminal antecedent(s). He is innocent. He has falsely been implicated without any material evidence. It is further submitted that learned Courts below have not taken into consideration the DNA report because as per the DNA report, male profile of the juvenile in conflict with law is not found on the Signature Not Verified Signed by: ASHISH KUMAR JAIN Signing time: 10/1/2024 7:05:33 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:50218 4 CRR-3406-2024 vaginal slide of the prosecutrix, on the contrary, co-accused DNA profile has been found. It is further submitted that there is no evidence on record to show that if the juvenile is released on bail, 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 will defeat the ends of justice. No such findings were recorded as to how, he will come in contact with known criminal and as to how, he would expose to moral, physical, or psychological danger or that his release would defeat the ends of justice. It is also submitted that mother of the juvenile is ready to give undertaking that if juvenile is released on bail, she will keep him in custody and will take his proper care. It is further submitted that learned Juvenile Justice Board as well as the Appellate Court have not properly appreciated the facts of the case and have passed the impugned orders in a cursory manner without considering the object of the law enacted for the benefit of the juvenile and have refused to release the juvenile on bail.
6. On the other hand, learned counsel for the State has supported that impugned judgment and order passed by the Courts below and has contended that the co- accused persons in furtherance of the common intention with the juvenile has committed a heinous of gang rape. Therefore, it has been prayed that considering the gravity of the offence, juvenile in conflict with law may not be released on bail and the present criminal revision filed on behalf of the juvenile may be dismissed.
7. I have heard rival submissions put-forth by learned counsel for the parties and perused the record.
8. It is undisputed that at the time of commission of offence, juvenile in conflict with law was 16 years old in age. Learned Juvenile Justice Board and learned Additional Sessions Judge/Children Court have taken into consideration the Signature Not Verified Signed by: ASHISH KUMAR JAIN Signing time: 10/1/2024 7:05:33 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:50218 5 CRR-3406-2024 gravity of crime committed by the juvenile. However, it appears that learned Additional Sessions Judge has not gone through the Social Investigation Report because in the impugned appeal judgment, juvenile is not found to be drugs addict while in social investigation report, it is clearly observed that juvenile is drugs addict and is in bad company. Juvenile is in observation home for more than a period of 7 months and in this period, his conduct has been found positive & normal. Thus, there was nothing for the Courts below to infer that release of juvenile would defeat in any way the ends of justice or his release is likely to bring him into association with any known criminal, or expose him to moral, physical, or psychological danger. In lack of material on record, the findings recorded by the Courts below are not justified.
9. Before considering the legality, correctness and propriety of the order passed by the Courts below, it would be useful to look at the relevant provision of the Act. Section 12 of Juvenile Justice (Care and Protection of Children) Act, 2015 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 Signature Not Verified Signed by: ASHISH KUMAR JAIN Signing time: 10/1/2024 7:05:33 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:50218 6 CRR-3406-2024 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 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 fulfill 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."
10. Provisions of Section 12 of "J.J. Act, 2015" manifest that ordinarily, the Juvenile Justice Board is under obligation to release the juvenile on bail with or without surety. The juvenile shall not be released in certain circumstances as the latter part of the section also uses the word 'shall' imposing certain mandatory conditions prohibiting the release of the juvenile by the J.J. Board. If there are any reasonable grounds for believing; (a) that the release is likely to bring him into association with any known criminal; (b) that release is likely to expose him to moral, physical, or psychological danger and (c) that release of the juvenile is in conflict with law and would defeat the ends of justice.
11. From a bare reading of the provisions of Section 12 of "J.J. Act, 2015", it appears that the intention of the legislature is to grant bail to the juvenile irrespective of the nature or gravity of the offence alleged to have been committed Signature Not Verified Signed by: ASHISH KUMAR JAIN Signing time: 10/1/2024 7:05:33 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:50218 7 CRR-3406-2024 by the juvenile, and bail can be declined only in such cases where there are reasonable grounds to believe that the release is likely to bring the juvenile into an association of any known criminal or expose him to moral, physical, or psychological danger, or that his release would defeat the ends of justice. The gravity of the offence is not a relevant consideration for declining the bail to the juvenile. A juvenile can be denied the concession of bail if any of the three contingencies specified under Section 12(1) of "J.J. Act, 2015" is available.
12. In case of Narayan Sharma Vs. State of MP ILR (2012) MP 796 A Coordinate Bench of this Court while considering the provision of the Section 12 of the Act observed as under:-
"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 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 of 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 crystallized 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 Signature Not Verified Signed by: ASHISH KUMAR JAIN Signing time: 10/1/2024 7:05:33 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:50218 8 CRR-3406-2024 bail, except only in those cases where the case fall in one or the other exception engrafted by the legislature in section 12 itself."
13. It has been observed in Pratap Singh Vs. State of Jharkhand & another 2005 SCC (Criminal) 742, that:-
"the whole object of the Act is to provide for the care, protection, treatment, development and rehabilitation of neglected delinquent juveniles. It is a beneficial legislation aimed at to make available the benefit of the Act to the neglected or delinquent juveniles. It is settled law that the interpretation of the Statute of beneficial legislation must be to advance the cause of legislation to the benefit for whom it is made and not to frustrate the intendment of the legislation."
14. Further it has been observed in Sanjay Chaurasia Vs. State of U.P. and another 2006 (55) SCC 480 that:-
"10. In case of the refusal of the bail, some reasonable grounds for believing above mentioned xx exceptions must be brought before the court concerned by the prosecution but in the present case, no such ground for believing any of the above mentioned exception has teen brought by the prosecution before the Juvenile Justice Board and appellate court. The appellate court dismissed the appeal only oh the presumption that due to commission of this of fence, the father and other relatives of other kidnapped boy had developed enmity with the revisionist, that is why in case of his release, the physical and mental life of the revisionist will be In danger and his release will defeat the ends of justice but substantial to this presumption no material has been brought before the appellate court and the same has not been discussed and only on the basis of the presumption, Juvenile Justice Board has refused the bell of the Signature Not Verified Signed by: ASHISH KUMAR JAIN Signing time: 10/1/2024 7:05:33 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:50218 9 CRR-3406-2024 revisionist which is In the present case is unjustified and against the spirit of the Act."
15. Co-ordinate Benches of this Court in case of Karan Vs. State of MP in Cr.R. No. 5159/2018 decided on 14.01.2019 and Girdhar Vs. State of MP in Cr.R. No. 509/2021 decided on 17.03.2021 has held that the bail application of a child in conflict with the law cannot be rejected merely on the ground of seriousness of the crime. The only exception to grant of bail to a child in conflict with the law is the reasonable ground for believing that release would bring him into association with any known criminal or expose him to moral, physical or psychological danger or his release would defeat the ends of justice.
16. Section 13(1)(ii) of "JJ Act, 2015" provides that the Probation Officer shall submit a social investigation report within two weeks from when a child is apprehended or brought to the Board, containing information regarding the antecedents and family background of the child and other material circumstances likely to be of assistance to the Board for making the inquiry. The "social investigation report" which has been defined in Rule 2(xvii) of The Juvenile Justice (Care and Protection of Children) Model Rules, 2016, means the report of a child containing detailed information pertaining to the circumstances of the child, the situation of the child on economic, social, psycho-social and other relevant factors, and the recommendation thereon. This report becomes important for the inquiry to be done by the Board while passing such orders in relation to such a child as it deems fit under Sections 17 and 18 of this Act. The purpose behind this provision is to enable the Juvenile Justice Board to get a glimpse of the social circumstances of the child before any order regarding bail or of any other nature is passed.
Signature Not Verified Signed by: ASHISH KUMAR JAIN Signing time: 10/1/2024 7:05:33 PMNEUTRAL CITATION NO. 2024:MPHC-JBP:50218 10 CRR-3406-2024
17. 'Form-6' of the Model Rules, 2016, contains a detailed proforma of the social investigation report. The social investigation report submitted by Probation Officer and Child Welfare Officer and it is incumbent upon the juvenile Justice Board to take into consideration the social investigation report and make an objective assessment on the reasonable grounds for rejecting the bail application of the juvenile.
18. In this case, as per the recital of the F.I.R., statements of the witnesses, DNA report and other material on record, it is apparent that the juvenile in conflict with law is not the main accused as his male profile is not found on the vaginal slide of the prosecutrix; on the contrary, co-accused male profile has been found and DNA of co-accused has matched. The allegation of committing gang rape is against Shubham Ahirwar @ Shiva and one another person. Although, as per Social Investigation Report, juvenile is drugs addict and consuming excessive liquor and is in habit of smoking cigarette, but it cannot be over looked that juvenile in conflict with law has no criminal background and it is his first offence. It is settled position of law that while considering the bail application of a juvenile, the gravity of offence alone cannot be a ground to reject the bail application. Juvenile is in observation home for last more than 07 months. Therefore, I am of the view that considering the overall facts, the view taken by the Juvenile Justice Board as well as appellate Court in the impugned judgment and order dismissing the applications for giving the Juvenile on Supurdagi have not properly appreciated the mandatory provisions of Section 12 of the J.J. Act, 2015 as well as other provisions in relation to juvenile and have declined to grant bail merely on the basis of unfounded apprehension and gravity of offence. In the absence of any material or evidence with reasonable grounds it cannot be said that his release would defeat the ends of justice. Thus, it is explicit that Juvenile Signature Not Verified Signed by: ASHISH KUMAR JAIN Signing time: 10/1/2024 7:05:33 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:50218 11 CRR-3406-2024 Justice Board and appellate Court both have not recorded the findings on the three contingencies for declining the bail to the juvenile. Therefore, I am of the considered view that the order dated 06.03.2024 passed by the Juvenile Justice Board, Raisen in relation to FIR bearing Crime No.25/2024 of Police Station Umraoganj, District Raisen and appeal judgment dated 08.04.2024 passed in Criminal Appeal No.38/2024 by the Appellate Court are not sustainable. Hence, the above orders are set aside and present criminal revision filed on behalf of juvenile is allowed as juvenile's mother is ready to take care of the juvenile.
19. It is directed that juvenile in conflict with the law be released on bail in relation to FIR bearing Crime No.25/2024 of Police Station Umraoganj, Raisen (MP) for commission of offence under Sections 376-D, 506 of IPC, upon furnishing a personal bond of his mother of Rs.1,00,000/- (Rupees One Lakh Only) with two solvent sureties of his relatives in the amount of the Rs.50,000/- (Rupees Fifty Thousand Only) each to the satisfaction of Juvenile Justice Board, Raisen (MP) subject to the following conditions:-
(1) During bail period, applicant/juvenile in conflict with law will remain in their supervision and control and they shall be responsible for his maintenance, well being and other activities.
(2) Juvenile's mother shall undertake that upon release on bail juvenile will not be permitted to go into contact or association with any known criminal or allowed to be exposed to any moral, physical, or psychological danger and further that she will ensure that the juvenile will not repeat the offence.
(3) Applicant/Juvenile in conflict with law will report to the Probation Officer on the every last date of the calendar month and Probation Officer will keep a strict vigil on the activities of the juvenile and regularly draw up his social investigation report that would be Signature Not Verified Signed by: ASHISH KUMAR JAIN Signing time: 10/1/2024 7:05:33 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:50218 12 CRR-3406-2024 submitted to the J.J. Board, on such a periodical basis as the Juvenile Justice Board may need it.
(4) Juvenile's mother shall also ensure of the appearance of the Juvenile (applicant) before J.J. Board on all the dates fixed by it till the final disposal of the case pending before it.
20. This criminal revision is allowed accordingly.
(DINESH KUMAR PALIWAL) JUDGE @shish Signature Not Verified Signed by: ASHISH KUMAR JAIN Signing time: 10/1/2024 7:05:33 PM