CRM No. M 18932 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -- CRM No. M 18932 of 2009 (O&M) Date of decision: 08.01.2010 Gurbhej Singh etc. ........ petitioners Versus State of Punjab .......Respondent(s) Coram: Hon'ble Ms Justice Nirmaljit Kaur -.- Present: Mr.Navkiran Singh, Advocate for the petitioner s Mr. Sandeep Moudgil, DAG, Punjab Mr. Pradeep Virk, DAG, Haryana Mr. Jasmandeep Singh, Advocate for Mr. Anupam Gupta, Advocate for UT Chandigarh -.- 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporter or not? 3. Whether the judgement should be reported in the Digest? Nirmaljit Kaur, J. CRM No. 284 of 2010 This is an application under Section 482 Cr.P.C. for converting the present bail application into a criminal revision petition under Section 53 of the Juvenile Justice (Care and Protection of Children) Act, 2000. Notice of the application to the Advocate General, Punjab. CRM No. M 18932 of 2009 (O&M) 2 Mr. Sandeep Moudgil, DAG, Punjab accepts notice on behalf of State. Facts of the case are that the petitioners were all juveniles who were arrested between 10.08.2008 and 26.08.2008. Their bail application was dismissed by the Juvenile Justice Board vide order dated 03.10.2008. Ordinarily, the appeal was competent in the matter under Section 52 of the the Juvenile Justice (Care and Protection of Children) Act, 2000. However, the same was not availed of. The said appeal was required to be filed within 30 days of passing of the order. The stipulated period has lapsed. Accordingly, the present application has been filed with a prayer that the present bail petition be converted into a criminal revision petition under Section 53 of the Juvenile Justice (Care and Protection of Children) Act, 2000. Reliance has been placed on the judgement of Hardip Singh v. State of Punjab reported as 2002(1) CRC (Criminal) 401, wherein, in similar circumstances, the petition under Section 439 Cr.P.C. was treated as revision under Section 53 of the Juvenile Justice (Care and Protection of Children) Act, 2000. In view of the above, the present petition is treated as revision petition under Section 53 of the Juvenile Justice (Care and Protection of Children) Act, 2000. The earlier application for bail was dismissed and withdrawn at that stage as the counsel had taken the stand that the ground of petitioners being juveniles was not taken before the trial court. Now the present petition is filed challenging the order dated 03.10.2008 (Annexure P-3) CRM No. M 18932 of 2009 (O&M) 3 The petitioners were all minors at the time of the commission of the offence. This fact is not denied. The bail application and the order rejecting the same by the Principal Magistrate, Juvenile Justice Board, Amritsar is a cryptic one. The order dated 03.10.2008 passed by the Principal Magistrate, Juvenile Justice Board, Amritsar reads as under:- “Arguments on bail application have been heard. The allegations against the juveniles falls under Section 302 IPC that they have committed murder. In such circumstances, if the juveniles namely Sarabjit Singh, Bikramjit Singh, Parminder Singh, Gurbhej Singh and Gurjant Singh are released on bail. Under these circumstances, the juveniles cannot be released under the provisions of Section 12(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Accordingly, the bail application of the juveniles namely Sarabjit Singh, Bikramjit Singh, Parminder Singh, Gurbhej Singh and Gurjant Singh is rejected.” As per the prosecution case, the petitioners along with other 14/15 persons came in Trax Car Mahindra armed with weapons. When the vehicle came before the Police Naka, ASI Gurwail Singh and HC Ashwani Kumar stepped forward to stop the car, but the driver of the car Hira Singh alias Karamjeet Singh son of Davinder Singh ran the car over ASI Gurwail Singh and HC Ashwani Kumar with the intention to kill them and grievously hurt them. Learned counsel for the State, thereafter, vehemently argued that the petitioners were rightly declined the bail. It was submitted that the CRM No. M 18932 of 2009 (O&M) 4 vehicle was being stopped on account of information that the petitioners along with others were coming from Amritsar after creating nuisance and ASI Gurwail Singh and HC Ashwani Kumar along with others police officials started checking the car. Hira Singh and his friends unanimously ran over the car on ASI Gurwail Singh and HC Ashwani Kumar, when they tried to stop them. Learned counsel for the petitioners, however, pointed out that the death was on account of accident when the Trax accidentally hit the Naka. Since the same resulted in death of police official, a false case has been planted on the petitioner. Moreover, they are juveniles. Learned counsel for the parties have been heard. The Court cannot lose sight of the fact that the petitioners were juveniles at the time of incident. Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2000, 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 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 CRM No. M 18932 of 2009 (O&M) 5 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 incharge 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 petitioners are likely to come in contact with moral, physical or psychological danger or that their release would defeat the ends of justice. This Court in the case of Manmohan singh v. State of Punjab, reported as 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 CRM No. M 18932 of 2009 (O&M) 6 petitioner is available at home. In case the petitioner is released on bail, he can be looked after by his grandfather and the observation or 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 reported as 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 CRM No. M 18932 of 2009 (O&M) 7 him to moral, physical or psychological danger or that his release would defeat the ends of justice.” In Parveen @ Fattey v. State of Haryana, reported as 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.” The petitioners in the present case were juveniles at the time of incident and there is no evidence to show that their release will expose them CRM No. M 18932 of 2009 (O&M) 8 to any moral, physical or psychological danger or that their release would defeat the ends of justice. There is no exception pointed out for rejection of the bail. Even otherwise, from the perusal of the allegations in the FIR, it is yet to be ascertained as to whether death of the police official was on account of the accident or otherwise. Even as per the post-mortem report, the alleged injuries are stated to have been caused in a due to road accident. Moreover, the said Car was being driven by one Hira Singh and not by the petitioners. The petitioners were admittedly only sitting in the Trax. Moreover, they are in custody for almost one year and five months. Accordingly, it is directed that petitioners shall be released on bail on furnishing adequate bail bonds to the satisfaction of the Principal Magistrate, Juvenile Justice Board, Amritsar. Anything said herein will have no bearing on the merit of the case. The respective Government of Punjab, Haryana and Union Territory, Chandigarh have placed on record their affidavits in pursuance to the order dated 24.08.2009. It is hoped that respective State Government of Punjab, Haryana and Chandigarh shall strictly adhere to the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 and frame the rules for implementation of various programmes under Chapter IV of the Act, as expeditiously as possible preferably within four months. (Nirmaljit Kaur) Judge January 08, 2010 mohan