Bangalore District Court
Master Sajan Kumar vs State Of Karnataka on 11 June, 2018
IN THE COURT OF L ADDITIONAL CITY CIVIL &
SESSIONS JUDGE, BENGALURU CITY (CCH-51)
Dated this the 11th Day of June 2018
PRESENT
Smt. SUSHEELA, B.A., LL.B.,
L Additional City Civil & Sessions Judge,
Bengaluru
CRIMINAL APPEAL No.1025/2018
APPELLANT: Master Sajan Kumar
Represented by father-Sri.Sudhir Mahtho,
S/o. Gaya Mahtho, 52 years,
R/at No.5, Vivek Nagar Post,
Ejipura, Srinivagilu,
Near Yellamma Temple,
Gundappa Compound
Bengaluru-560 047.
[Rep. Smt.Lakshmi.G-Advocate]
/ Vs /
RESPONDENT: State of Karnataka,
By Vivek Nagar Police Station,
Bengaluru.
By Public Prosecutor- Bengaluru
JUDGMENT
The appeal filed by the appellant under Section 101 of Juvenile Justice (Care & Protection of Children) Act, 2015 aggrieved by the order of rejection of bail petition of the appellant dated 03-05-2018 passed by Juvenile Justice Board- 2 Crl. A. No.1025/2018 Madiwala, Bengaluru in J.C.No.69/2018 on the file Juvenile Justice Board-Madiwala, Bengaluru for the offences punishable under Section 376 of IPC and section 4 of POCSO Act and to set-aside the above said order by granting regular bail to the juvenile offender in the interest of Justice.
2. The Juvenile Justice Board-Madiwala, Bengaluru has rejected the bail petition of the appellant filed under section 12(1) of Juvenile Justice (Care & Protection of Children) Act, 2015. Here the legality and correctness of the said order is under challenge and also granting of regular bail to him in the present appeal.
3. In the instant appeal, the appellant herein after referred as juvenile offender and the respondent herein after referred as complainant/police for the sake of convenience. The Vivek Nagar Police, Bengaluru registered case against juvenile offender for the offences punishable under Section 376 of IPC and section 4 of POCSO Act, 2012 in Crime No.271/2017. After completion of investigation, the complainant/police filed charge sheet against the juvenile offender and it is registered as J.C.No.69/2018 before the Juvenile Justice Board-Madiwala, 3 Crl. A. No.1025/2018 Bengaluru.
4. It is the case of the prosecution that the complainant lodged complaint stating that he along with his wife residing behind Yellamma Temple, Srinivagilu, Bengaluru-47, he is having two children viz., the victim girl, aged 6 years and 2 years old son. He is doing cooking work at H.S.R. Layout. His daughter-the victim girl is studying in Ukg at Modern School, Ezipura. On 18-11-2017 at about 09.00 p.m., when the complainant was engaged in his work and his wife was attending his son, at that time the victim girl was playing in a room and the son of complainant's sister-the accused herein who was also playing with the victim girl, closed the door of said room. After some time, the neighbour's child aged four years went near his mother and told that the juvenile offender is doing something on the victim girl and immediately she informed the same to the mother of the victim girl and by that time the mother of victim came to the spot, the juvenile offender went out of the room leaving the victim girl there itself. The victim girl was crying stating that she is having stomach ache. The mother of the victim girl by upholding the cloths of the 4 Crl. A. No.1025/2018 victim saw bleeding at the private part, she got fear and immediately taken her daughter to Jayagopla Clinic situated at Ezipura Main Road and the said doctor instructed her to go to Government hospital and thereafter she had taken her daughter to St. John's Hospital and admitted her daughter, now the victim girl is under treatment. The juvenile offender being the son of the sister of the complainant committed rape on the victim girl. On the basis of said complaint, the respondent /police registered the case in Crime No.271/2017 for the offences punishable under Section 376 of IPC and section 4 of POCSO Act, 2012.
5. Initially the juvenile offender was produced before the Juvenile Justice Board-Madiwala, Bengaluru, he was taken to custody of the said board and remanded to Observation Home for further proceedings before the Juvenile Justice Board. The Juvenile offender represented by his father filed bail application under Section 12(1) of J.J. Act. The prosecution has filed objections to the petition and after hearing arguments on merits, the Juvenile Justice Board-Madiwala, Bengaluru dismissed the bail application on 03-05-2018. 5 Crl. A. No.1025/2018
6. Aggrieved by the said order the appellant being juvenile offender has preferred this appeal on the following grounds:
It is the ground of appellant that the J.J. Board has committed a grave error in passing an adverse order against the juvenile without the consent of the J.J.B under section 2(13), 4 and 12, the order dated 03-05-2018 is bad in law and also perverse, discriminating and against the process of law. The J.J.B. failed to consider the bail petition, the relevant documents and without making note of the same in the order sheet, kept on dragging the matter for one or the other reasons without any reasonable ground and kept the same pending for 166 days. As such it has infringed the rights of the juvenile to exercise his right under section 167(2) of Cr.P.C. The J.J.B. was given an assurance and issued a direction to the appellant to deposit Rs.50,000/- in the name of the victim and also granted one month time to deposit the same and produced F.D. Bond and other relevant documents before the J.J. Board. But it finally failed to consider the above said matter for disposal of the bail petition nor enlarged the juvenile offender and passed 6 Crl. A. No.1025/2018 the impugned order under appeal. There was manifestly erroneous order passed on 03-05-2018 against the majority of the without the consent of the members and they expressed their opinion and their view regarding conduct of the juvenile and opposing the transfer of the above case and they were not signed in the bail order nor the transferring the case before this Court. There are several weakness passed by the J.J.B., the testimony which have been over looked by the J.J.B., the circumstance and respondent may conceivable give rise to the suspicious that the appellant's son was involved in the offence.
The J.J.B. over looked the documents and passed the order under appeal which is perverse, since it has acted upon conjunctions and supplies for that the events and appellant's son given a benefit of doubt. The complaint is sufficient to create some suspicious and false story about the complicity of the juvenile offender under section 376 of IPC read with Section 4 of POCSO Act and J.J.B. failed to consider the document properly without the consent of the members, it suffers illegality manifest error. The finding reached by the J.J.B. was unreasonable false, frivolous and adverse and discriminating. 7 Crl. A. No.1025/2018 The impugned order passed by the board under appeal is illegal, improper, incorrect, as a result of miscarriage of justice is required to be intervened by this Court and requested to allow the appeal as prayed for.
7. While resisting the instant appeal, the learned Public Prosecutor filed objections stating that the appeal is not maintainable either in law or on facts and the same is liable to be dismissed. He has reiterated the complaint averments in brief. He has denied each and every ground of appeal which is contrary to his defense as false. Further it is his contention that the produced charge sheet prima-facie disclose about the commission of offence by the juvenile offender. The alleged offence is heinous in nature. If at this stage the juvenile offender is enlarged on bail, he may abscond or he may tamper or hamper the prosecution witnesses and thereby cause delay to the proceeding. He has requested to dismiss the appeal as prayed for.
8. Arguments heard from both the sides and the matter is set down for judgment.
8 Crl. A. No.1025/2018
9. On the basis of the above facts, the following points that arise for my consideration are as under:-
1. Whether the appellant proves that the Juvenile Justice Board-Madiwala, Bengaluru has committed error in rejecting the petition of appellant filed under Section 12(1) of Juvenile Justice Act of 2015 and they are entitled for regular bail as contended in the grounds of appeal?
2. Whether the impugned order needs interference of this Court?
3. What order?
10. My findings on the above points are as under:-
Point No.1: In the Negative.
Point No.2: In the Negative.
Point No.3: As per the final orders for the following:
REASONS
11. Point No.1 and 2:-Since the facts and circumstances involved in these two points are one and the same, hence, I have taken up together for consideration to avoid repetition of reasons.
12. Perused the entire record impugned order under appeal and also arguments addressed by the learned advocate for appellant and learned Public Prosecutor. 9 Crl. A. No.1025/2018
13. It is the case of the prosecution that the appeal is not maintainable either in law or on facts and the same is liable to be dismissed. He has reiterated the complaint averments in brief. He has denied each and every ground of appeal which is contrary to his defense as false. Further it is his contention that the produced charge sheet prima-facie discloses about the commission of offence by the juvenile offender. The alleged offence is heinous in nature. If at this stage the juvenile offender is enlarged on bail, he may abscond or he may tamper or hamper the prosecution witnesses and thereby cause delay to the proceeding.
14. It is the contention of the appellant who is the father of the juvenile offender that the juvenile was minor and he was under his care and custody. The juvenile was secured by the respondent on 18-11-2017 at about 09.00 p.m., stating that he was involved in commission of offence under section 376 of IPC read with section 4 of POCSO Act and was produced before J.J. Board on 19-11-2018 and thereafter he was under the detention at Observation Home at Madiwala, Bengaluru. Further the appellant has taken contention that on 07-02-2017 he has filed 10 Crl. A. No.1025/2018 bail petition along with relevant documents like lease agreement, Aadhar card, before the J.J.B to consider the said application and to enlarge the Juvenile offender on bail, but the J.J.B. has not passed any order and without any reasons kept on dragging the matter, even though Probation Officer Report and parents of victims voluntarily represented before the J.J.B. on four occasions requesting the Board to record their statement and dispose of the matter. But the J.J.B., has not considered the statement of the victim parents even after completing 165 days. The parents of victim submitted before J.J.B., that he has not filed any complaint against the juvenile and requested the J.J.B to record his statement and close the above case. After hearing the parents of the victim, the J.J.B. ordered to deposit Rs.50,000/- in the name of the victim and to produce F.D. Bond as well as the Pass Book and issued an assurance that after production of said document, the matter will be considered and disposed and believing the assurance of the said direction the appellant deposited Rs.50,000/- in the name of the victim. But the J.J.B., after deposit of Rs.50,000/- in the name of victim, it has decided to transfer the above case 11 Crl. A. No.1025/2018 before this Court and rejected the bail application only on 166th day i.e., on 03-05-2018, where the majority of the members were not attested the autograph in the said order and they were opposing the said order against under section 2(13) and section 4, 12, 15(3) of J.J. Act. Further it is the contention of appellant that during the course of detention the juvenile at observation home for a past more than 7 months is conduct and efficient and good behaviour and he has the helping nature by assisting the observation home as assisting at Kitchen for preparing food and the majority of the members of J.J.B. expressed their opinion for the good conduct of the juvenile and also produced a list of cases filed before J.J.B., under the age of 17 and disposed by J.J.B by granting regular bail, but in this case the J.J.B. failed to consider the bail petition and passed the impugned order under appeal and requested to consider the appeal as stated in the grounds.
15. By going through the impugned order under appeal, the Juvenile Justice Board, passed said order on 03-05-2018 in J.C.No.69/2018 stating that the juvenile offender as on the date of incident was aged about 17 years 10 months, the offence is 12 Crl. A. No.1025/2018 an heinous one and it gives bad effect on the society. The juvenile offender hails from Bihar, if he is released on bail, he may abscond and he is going to tamper with the prosecution witnesses and hamper the proceedings, if he is released on bail, it will defeat the ends of justice and rejected the bail petition of the juvenile offender.
16. With these on perusal of certified copy of the said order produced by the appellant, it is signed only by the Chairman of the Juvenile Justice Board, but the members not signed the said order. Further another copy of document produced by the appellant in respect of opinion of Juvenile Justice Board Members that the CCL has shown good conduct while at the Observation Home over the last 7 months. He has undertaken responsibility of cooking for all the children at the Observation Home, serves as a positive role model for the younger boys at the Observation Home as well has shown deep remorse for the harm caused to his family. This has been reported and appreciated by the Superintendent, members of the staff at the Observation Home, as well as observed by the Members during their numerous visits to the Observation Home 13 Crl. A. No.1025/2018 on non-hearing days. This shows the CCL has a high potential for reform and rehabilitation and is already on a positive path of change. Transfer to an adult system will deny him the age and developmentally appreciate opportunities for reform and rehabilitation that he is entitled to in the juvenile justice system and opined that the CCL should be tried by the Juvenile Justice Board-Madiwala, Bengaluru and not be transferred to the Sessions Court and the CCL has the right to a fair and speedy trial and the said case is not to be transferred in the best interest of the child and the members signed the same on 19- 05-2018.
17. No doubt it is true, the above said opinion is inner administration order of Juvenile Justice Board and it is not applicable to the instant appeal. Here on perusal of grounds in Para-12, the appellant mentioned he is aggrieved by the order for rejecting the bail application passed by the Juvenile Justice Board-Madiwala, Bengaluru in J.C. No.96/2018 dated 03-05- 2018 for an offence punishable under Section 376 of IPC read with section 4 of POCSO Act and the appellant preferred an appeal on the following grounds. Here the J.C. number under 14 Crl. A. No.1025/2018 Appeal is 69/2018 and not 96/2018, as such this Court opines es the appellant has not come with clean hand and entitled for an order as prayed in the appeal.
18. Further on perusal of para-6 to 10 of the Memorandum of Appeal, the appellant mentioned list of so many cases disposed off by the Juvenile Justice Board as per the dates mentioned in the said pages in respect of bail petitions and also stated the discrimination made by the Juvenile Justice Board while passing the impugned order under appeal. But, in order to substantiate the said facts and circumstances with regard to the discrimination made, the appellant has not produced any certified copy of the order sheet to believe the same. Further having knowledge of filing of charge sheet by the respondent/police, the appellant not furnished copy of entire charge sheet to know about the medical examination of the victim girl and non-production of said copy of charge sheet, it is absolutely fatal to the appellant to prefer this appeal.
19. Further it is the ground of the appellant that as 15 Crl. A. No.1025/2018 directed by the Juvenile Justice Board, he has deposited Rs.50,000/- into the name of victim girl, but no such copy of F.D. bond produced by the appellant to believe the said fact and circumstances. Moreover the appellant has not placed entire order sheet certified copy of J.C.No.69/2018 to know what had happened on each hearing dates as contended in the grounds of appeal and to believe that he is entitle for regular bail from the hands of this Court. Admittedly the production of copy of FIR prima-facie discloses about the commission of rape by the juvenile offender on six years old child who is none other than the brother's daughter of mother of juvenile offender. Further mere filing of charge sheet is not a ground to consider the request of the appellant that too in such a heinous offence leveled against the juvenile offender. The appellant ha snot come up with clean hands to claim bail order to his son in the instant appeal. Further on perusal of reasons stated in the impugned order under appeal, the Juvenile Justice Board not erred in passing order under appeal in such an heinous offences case.
16 Crl. A. No.1025/2018
20. Viewing from available material facts, circumstances, documents and also impugned order under appeal, this Court feels to observe that the Juvenile Justice Board-Madiwala, Bengaluru, not erred in coming into conclusion that the juvenile offender is not entitled for regular bail from the hands of this Court at this stage. At the same time whatever the grounds stated by the appellant herein is not acceptable one in order to set-aside the impugned order under appeal and to grant regular bail to juvenile offender.
21. Taking into consideration of the entire materials, circumstances, documents produced by the learned advocate for appellant and arguments canvassed by both the sides, this Court has no impediment in arriving into conclusion that the appellant has failed to establish that the Juvenile Justice Board, Madiwala-Bengaluru has committed an error in rejecting the bail petition filed under section 12(1) of J.J. Act of 2015 and he is entitled for an order of regular bail as stated in the grounds of appeal and also the impugned order under appeal needs an interference by this Court. Consequently, I hold Point No.1 and 2 in the Negative.
17 Crl. A. No.1025/2018
22. Point No.3:- For the above said reasons and discussions, I proceed to pass the following:
ORDER The Criminal Appeal filed by the Appellant is hereby dismissed.
The impugned order passed by Juvenile Justice Board-Madiwala-Bengaluru dated 03-05-2018 in J.C. No.69/2018 rejecting the bail petition filed by the appellant under Section 12(1) of Juvenile Justice Act, 2015 is hereby confirmed.
Further the Juvenile Justice Board-Madiwala, Bengaluru is directed to dispose of the case within three months from the date of receipt of copy of the order of this appeal.
Office is directed to send copy of judgment to the Juvenile Justice Board-Madiwala, Bengaluru as per law.
(Dictated to the Judgment Writer, transcribed and typed by her. It is then corrected, signed and pronounced by me in open Court on this the 11th Day of June 2018) (SUSHEELA) L ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU