Crl. Misc. No. M-38079 of 2010 (1) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. M-38079 of 2010 DATE OF DECISION: 27.1.2011 Gulab @ Sonu ..........Petitioner Versus State of Haryana ..........Respondent BEFORE:- HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present:- Mr. Sunil Panwar, Advocate for the petitioner. Mr. S.S. Mor, Sr. DAG, Haryana. **** DAYA CHAUDHARY, J. The present petition under Section 439 Cr.P.C. has been filed by petitioner-Gulab @ Sonu for grant of regular bail in case FIR No. 300 dated 20.9.2009 registered under Sections 363/366/376 IPC at Police Station Tosham, District Bhiwani. Notice of motion was issued on 24.12.2010. Learned counsel for the petitioner submits that the present petition has been filed by the accused, who is juvenile, as his date of birth is 15.1.1993 as recorded in the certificate of middle examination issued by Board of School Education, Haryana, through his father being natural guardian by stating that he has falsely been implicated in the case only on the basis of suspicion on the ground that he was roaming near the house of the complainant. As per case of the prosecution, Neeru Bala went from her house on 19.9.2009 and the FIR was registered on 20.9.2009. Learned Crl. Misc. No. M-38079 of 2010 (2) counsel further contends that prosecutrix has gone from her house by her own and even as per medical evidence, there is no injury mark on the person of the prosecutrix. The petitioner has been implicated in this case because of the previous enmity between the parties. The prosecutrix was recovered near the house of the complainant on 21.9.2009 and there can be possibility of false involvement of petitioner to teach him a lesson for roaming near the house of the complainant. Learned counsel also submits that after the proper inquiry conducted on the basis of documents submitted by the petitioner as well as the complainant, the ld. Juvenile Court has accepted the plea of being juvenile vide order dated 6.12.2010. It is also the contention of learned counsel that the petitioner has no previous criminal record and no other case is pending against him. Learned counsel for the State opposes the bail but is not able to controvert the submissions made by learned counsel for the petitioner. I have heard the arguments of learned counsel for the parties and have also gone through the contents of the FIR as well as other documents available on record. Admittedly, the petitioner was juvenile at the time of occurrence as his date of birth is 15.1.1993, as mentioned in certificate of middle examination issued by the Board of School Education, Haryana. The provisions of Section 12 of of the Act reads as under: “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 Crl. Misc. No. M-38079 of 2010 (3) force, be released on bail with or without surety 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 any 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 sub Section (1) by the Board if shall, instead of committing him to prison, make an order sending him to an observation home or a place or safety for such period during the pendency of the inquiry regarding him as may be specified in the order.” From the reading of the aforesaid Section, it is apparent that it is mandatory for the juvenile Court to release a juvenile on bail unless it is recorded that his release shall bring him into association with any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice. No material has been brought to the notice to show that the petitioner is likely to come in contact with moral, physical or psychological danger or that his release would defeat the ends of justice. Crl. Misc. No. M-38079 of 2010 (4) This Court in similar case reported as Manmohan singh v. State of Punjab 2004(1) PLR 497 in para 9 observed as under:- “9. In the instant case, admittedly the petitioner is a juvenile. It is also undisputed that the grandfather of the petitioner is available at home. In case the petitioner is released on bail, he can be looked after by his grandfather and the observation of the Courts below that the release of the petitioner would lead to moral and physical danger having no elderly person to look after him, is a mere apprehension based on no material/evidence. Merely because the petitioner is alleged to have caused injuries to the deceased by sharp edged weapon, he cannot be denied the benefit of bail under Section 12 of the Act, as the provisions of this Section provide that every juvenile for whatever offence he is charged with shall be released on bail except under the aforesaid one circumstance which in my opinion, is not existing in the instant case. Rather by declining the bail to the petitioner the very purpose of the Act will be defeated. Thus,I am of the firm opinion that the impugned orders passed by both the Courts below are not sustainable in the eyes of law as they will defeat the very purpose of the Act.” Similar observations were held in para 16 of Balkar Singh v. State of Punjab 2005 (1) ILR (Punjab) 356, which reads as under:- “16. In view of the aforesaid, grant of bail to a juvenile is mandatory. Bail to him can only be declined if there are reasonable grounds for believing that his release is likely to bring him in association with any known criminal or expose him to moral, physical or psychological danger or Crl. Misc. No. M-38079 of 2010 (5) that his release would defeat the ends of justice.” In Parveen @ Fattey v. State of Haryana 2006(1) RCR (Criminal) 8, in para 7, it was observed that;- “However, further detention of the juvenile in custody may cause him more than good. If the petitioner is released on bail and allowed to return home then the soothing effect of love and affection of his parents and family may be some help in softening his attitude towards society and may not expose him to further psychological harm.” Hon'ble the Supreme Court in the case of Gopinath Ghosh v. The State of West Bengal 1984 (1) RCR (Criminal) 444, while considering the prayer for bail by a juvenile, who was an accused for offence committed under Section 302 IPC opined as under:- “It clearly transpires from a combined reading of the sections hereinbefore extracted that where a juvenile delinquent is arrested, he/she has to be produced before a Juvenile Court and if no Juvenile Court is established for the area, amongst others, the Court of Session will have powers of a Juvenile Court. Such a Juvenile delinquent Ordinarily has to be released on bail irrespective of the nature of the offence alleged to have been committed unless it is shown that there appears reasonable grounds for believing that the release is likely to bring him under the influence of any criminal or expose him to moral danger or defeat the ends of justice.” In the present case also, the petitioner was minor at the time of occurrence and there is no evidence on record to show that his release will expose him to any moral, physical or psychological danger or his release would defeat the ends of justice in any manner. There is no explanation which has been pointed out for rejection of bail. The entire purpose of the Act is reformatory and keeping in Crl. Misc. No. M-38079 of 2010 (6) view this purpose in mind the provisions of Section 15 have been enacted which lays down as follows :- “Order that may be passed regarding juvenile.-- (1) Where a Board is satisfied on inquiry that a juvenile has committed an offence, then, notwithstanding anything to the contrary contained in any other law for the time being in force, the Board may, if it so thinks fit, -- (a) allow the juvenile to go home after advice or admonition following appropriate inquiry against and counselling to the parent or the guardian and the juvenile; (b) direct the juvenile to participate in group counselling and similar activities; (c) order the juvenile to perform community service; (d) order the parent of the juvenile or the juvenile himself to pay a fine, if he is over fourteen years of age and earns money; (e) direct the juvenile to be released on probation of good conduct and placed under the care of any parent, guardian or other fit person, on such parent, guardian or other fit person executing a bond, with or without surety, as the Board may require, for the good behaviour and well-being of the juvenile for any period not exceeding three years; (f) direct the juvenile to be released on probation of good conduct and placed under the care of any fit institution for the good behaviour and well-being of Crl. Misc. No. M-38079 of 2010 (7) the juvenile for any period not exceeding three years; (g) make an order directing the juvenile to be sent to a special home for a period of three years: Provided that the Board may, if it is satisfied that having regard to the nature of the offence and the circumstances of the case, it is expedient so to do , for reasons to be recorded, reduce the period of stay to such period as it thinks fit. (2) The Board shall obtain the social investigation report on juvenile either through a probation officer or a recognised voluntary organisation or otherwise, and shall take into consideration the findings of such report before passing an order. (3) Where an order under clause (d), clause (e) or clause (f) of sub-section (1) is made, the Board may, if it is of opinion that in the interests of the juvenile and of the public, it is expedient so to do, in addition make an order that the juvenile in conflict with law shall remain under the supervision of a probation officer named in the order during such period, not exceeding three years as may be specified therein, and may in such supervision order impose such conditions as it deems necessary for the due supervision of the juvenile in conflict with law: Provided that if at any time afterwards it appears to the Board on receiving a report from the probation officer or otherwise, that the juvenile in conflict with law has not been of good behaviour during the period of supervision Crl. Misc. No. M-38079 of 2010 (8) or that the fit institution under whose care the juvenile was placed is no longer able or willing to ensure the good behaviour and well-being of the juvenile it may, after making such inquiry as it deems fit, order the juvenile in conflict with law to be sent to a special home. (4) The Board shall while making a supervision order under sub-section (3), explain to the juvenile and the parent, guardian or other fit person or fit institution, as the case may be, under whose care the juvenile has been placed, the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to the juvenile, the parent, guardian or other fit person or fit institution, as the case may be, the sureties, if any, and the probation officer.” The aforesaid functions are to be carried out by the Juvenile Justice Board. It envisages broad number of functions and duties that the Board has to carry out to ensure that the juvenile who has come in conflict with law by going astray comes into the main stream. The matters which have been enlisted in Section 15 of the Act are not to be construed as exclusive but the Board has to act in the spirit of the law and ensure that the purpose for which it is enacted is carried out. For that purpose the Board at the time of considering the bail application of a juvenile ought to explore the possibility of resorting to the options which have been entailed in Section 15 of the Act which includes group counselling and counselling through the agencies of professional counsellors to such delinquent juveniles so that the process of reforming them is put on track. The Principal Magistrate is to act by imbibing the spirit of the statute and not merely act by sticking to the letter of the statute while Crl. Misc. No. M-38079 of 2010 (9) stripping it of its soul. It is incumbent upon the Principal Magistrate while dealing with the matters under Section 12 of the Act to simultaneously pass orders under the provisions of Section 15 of the Act and not merely pass an order shutting out the concession of bail as also shutting out any of the options available under Section 15 of the Act. In fact, even before the Principal Magistrate or the Board proceeds to determine the matter under Section 12, the procedure under Section 10 has to be complied with by the police itself who has to produce the juvenile before the Board without any loss of time and within 24 hours of his being apprehended. The Court would also like to know as to whether such procedures are being adhered to or not. In view of the facts and law position explained above, the present petition is allowed and petitioner is directed to be released on bail on his furnishing bail bond and surety bond to the satisfaction of Principal Magistrate, Juvenile Justice Board, Bhiwani. However, before releasing the petitioner on bail, the Court shall ensure that the father of the petitioner furnishes an affidavit and undertaking to the Court that he shall ensure that his son does not repeat any such occurrence during that period. The Principal Magistrate either acting as an officer of the Board or through the agency of the Board shall also ensure that any appropriate order is passed by it keeping in view the provisions of Section 15 of the Act which may also include regular counselling to be provided to the petitioner in order to obviate the recurrence of any such act. January 27, 2011 (DAYA CHAUDHARY) pooja JUDGE Note:-Whether this case is to be referred to the Reporter .......Yes/No Crl. Misc. No. M-38079 of 2010 (10)