Sunday, 26 June 2016

When minor child accused of offence under POCSO Act can be released on bail?


In the case in hand the report of the probation officer says that the
applicant is a student of class X; that he is average at studies; that his
conduct is good; that he takes interest in constructive cultural activities; that
he has realised his guilt and is repentant for the same; that there is
improvement in his attitude and that looking to his overall interest, one
chance is required to be given to him. The report nowhere says that if the
applicant is released on bail, he would come into association with any known
criminal or it would expose him to moral, physical or psychological danger or
would it defeat the ends of justice.
Thus considering the facts and circumstances of the case and the
report of the Probation Officer, present revision is allowed. Orders impugned
are hereby set aside. Applicant is directed to be released on bail on his
guardian or parents furnishing a bond in the sum of Rs. 10,000 with one
surety for the like sum to the satisfaction of the concerned Juvenile Justice
Board and also on filing an affidavit by him/her before the said Board to the
effect that:
(i) he shall be responsible for well-being of his son/the applicant,
(ii) he shall ensure that the applicant continues his studies and does not
fall into bad company, and
(iii) he shall report to the concerned Juvenile Justice Board on 28.3.2016
and thereafter once in two months on the dates fixed by the Board
regarding the progress made by his son/the applicant, till the applicant
attains/completes the age of 18 years.
HIGH COURT OF CHHATTISGARH, BILASPUR
CRR No. 814 of 2015
Kamesh Kumar S/o Rambharosha Sahu, aged about 17 years (Minor)

Versus
 State of Chhattisgarh 
 Pritinker Diwaker, J
Dated: 11/01/2016
Citation:2016 CRLJ(NOC)134

On mention being made, this case is taken up for being decided
finally.
This revision petition has been filed by the applicant against the order
dated 7.9.2015 passed by Additional Sessionsl Judge (FTC) Raipur in
Criminal Appeal No. 137/2015 dissmissing the appeal preferred by him
against the order dated 11.8.2015 passed by the Principal Magistrate,
Juvenile Justice Board, Raipur in Criminal Case No. 201/2015.
2. As per the case of prosecution, on 19.3.2015 the applicant took away
the prosecutrix aged about five years and committed forcible sexual
intercourse with her. On the basis of the report lodged by the father of the
prosecutrix, the case was registered agaisn the applicant under Section 376
IPC and sections 4, 6 and 8 of Protection of Children from Sexual Offences
Act, 2012. The appliant filed an application before the Principal Magistrate,
Juvenile Justice Board, Raigarh under Section 12 of the Juvneile Justice
(Care & Protection of Children) Act , 2000 (for short the “Act of 2000”) forgrant of bail which was rejected on 11.8.2015 on the ground that if released
on bail, he may influence the witnesses. The order of the Juvenile Justice
Board, on appeal, has come to be confirmed by the order impugned. Hence
this revision.
3. Counsel for the applicant submits that both the Courts below have
erred in law in rejecting the bail application as also the appeal filed by the
applicant. He submits that the provisions of Section 12 of the Act of 2000
have been completely ignored by both the Courts below. According to the
counsel for the applicant the report of the Probation officer does not indicate
anything against the applicant, rather it says that the applicant is a student of
class X and he is average at studies. Referring to the report, counsel for the
applicant further submits that according to the people of the locality, conduct
of the applicant is good and that he co-operates his parents in the domestic
work. Further referring to the said report, it is submitted that the applicant
lacks the proper moral guidance required for the adolescents and for this
only the allelged offence has taken place by him. Repot of the Probation
Officer further says that after realising his act the appliant is repentant for the
same and that there is improvement in his attitude. According to the report,
the applicant takes interest in social activities and looking to his constructive
approach, he has been made the representative of the disciplinary
committee. Lastly, the report states that keeping in mind the paramount
interest of the applicant, one opportunity is required to be given to him.
4. State counsel however supports the orders impugned passed by the
Courts below and submits that the application for release of the applicant on
bail and then the appeal preferred subsequently have rightly been dismissed
and there is no infirmity or illegality in the same.
5. Heard counsel for the parties and perused the documents on record.
6. Before drawing any conclusion regarding correctness or otherwise ofthe orders impugned, glance of the relevant provisions such as Section 12 of
the Act of 2000 becomes necessitous, which is reproduced as follows:
“Section 12 : Bail of Juvenile. - (1) When any person accused of a
bailable or non bailable offence, and apparently a juvenile, is
arrested or detained or appears or is 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 institution or fit person] but he shall not be so
released if there appear reasonable grounds for believing that the
release is likely to bring him into association with nay known
criminal or expose him to moral, physical or psychological danger
or that his release would defeat the ends of justice.
(2) When such person having been arrested is not released on
bail under sub-section (1) by the officer in charge of the police
station, such officer shall cause him to be kept only in an
observation home in the prescribed manner until he can be
brought before a Board.
(3) When such person is not released on bail under subsection
(1) by the Board it shall, instead of committing him to
prison, make an order sending him to an observation home or a
place of safety for such period during the pendency of the inquiry
regarding him as may be specified in the order.”
A bare reading of section 12 (1) makes it clear that any person accused of a
bailable or non bailable offence, and apparently a juvenile, is arrested or
detained or appears or is 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. It further says that such person shall not be so
released if there appear reasonable grounds for believing that the release is
likely to bring him into association with any known or expose him to moral,
physical or psychological danger or tht his release would defeat the ends of
justice.
7. Similarly, Section 13 of the Act of 2000 reads as under:
“13. Information to parent, guardian or probation officer.-
Where a juvenile is arrested, the officer incharge of the police
station or the special juvenile police unit to which the juvneile is
brought shall, as soon as may be after the arrest, inform-(a) the parent or guardian of the juvenile, if he can be found of
such arrest and direct him to be present at the Board befor ewhich
the juvenile will appear; and
(b) the probation officer of such arrest to enable him to obtain
information regarding the antecedents and family background of
the juvenile and other material circumstances likely to be of
assistance to the Board for making the inquiry.”
8. In the case in hand the report of the probation officer says that the
applicant is a student of class X; that he is average at studies; that his
conduct is good; that he takes interest in constructive cultural activities; that
he has realised his guilt and is repentant for the same; that there is
improvement in his attitude and that looking to his overall interest, one
chance is required to be given to him. The report nowhere says that if the
applicant is released on bail, he would come into association with any known
criminal or it would expose him to moral, physical or psychological danger or
would it defeat the ends of justice.
9. Thus considering the facts and circumstances of the case and the
report of the Probation Officer, present revision is allowed. Orders impugned
are hereby set aside. Applicant is directed to be released on bail on his
guardian or parents furnishing a bond in the sum of Rs. 10,000 with one
surety for the like sum to the satisfaction of the concerned Juvenile Justice
Board and also on filing an affidavit by him/her before the said Board to the
effect that:
(i) he shall be responsible for well-being of his son/the applicant,
(ii) he shall ensure that the applicant continues his studies and does not
fall into bad company, and
(iii) he shall report to the concerned Juvenile Justice Board on 28.3.2016
and thereafter once in two months on the dates fixed by the Board
regarding the progress made by his son/the applicant, till the applicant
attains/completes the age of 18 years.
10. Revision allowed. Sd/-
 (Pritinker Diwaker)

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