IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.277 of 2009 ASHARFI RAI @ AMRESH YADAV, Son of Sri Banarsi Rai, Resident of village – Sakhmohan Tola, Baskurba, P.S. – Bibhutipur, District – Samastipur. ……. Petitioner. Versus THE STATE OF BIHAR ……. Opp. Party. ----------- 03/ 08.04.2009 Heard Sri R.B.S. Pahepuri, Advocate for the petitioner and Sri G.P. Jaiswal, APP for the State. This revision petition has been listed before me merely because at any stage of the investigation/enquiry in Bibhutipur P.S. Case No. 118 of 2004, I had refused the prayer for bail of the petitioner. The new development which has been pointed out and which is clearly indicated by the impugned order passed by the learned Sessions Judge in Criminal Appeal No. 109 of 2008 is that the petitioner raised the point of being juvenile before the Board and ultimately on enquiry the petitioner was found a juvenile in conflict with law and accordingly, he made a prayer for being released from custody before the Juvenile Justice Board in the above said Bibhutipur P.S. Case No. 118 of 2004. The Juvenile Justice Board refused the prayer for bail holding that the offence being serious, it was not proper to direct the release of the petitioner. The petitioner thereafter preferred the Criminal - 2 - Appeal, which was maintainable under Section 52 of the Juvenile Justice (Care and Protection of Children) Act, 2000 and that was disposed of by the learned Sessions Judge by the impugned order holding that the nature of the offence did not permit him to infer with the findings of the learned lower court and as such the order was confirmed. Sri R.B.S. Pahepuri, learned counsel appearing for the petitioner has submitted that if one could carefully consider the provisions of Section 12 of the above noted Act, one could find that any juvenile accused of committing a non-bailable offence may not be released from custody, if there appears reasonable ground 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. It was contended that the seriousness or otherwise of the offence was never an aspect of the case to be considered under Section 12(1) of the Juvenile Justice Act and it was erroneous that the learned Sessions Judge did not consider that aspect of the matter and thereby fell in error in not permitting the release of the present petitioner. - 3 - Sri G.P. Jaiswal, Additional Public Prosecutor appearing for the State has conceded that the seriousness of the offence may not be an ingredient of Section 12(1) of the Juvenile Justice Act as it relates to not releasing a juvenile in conflict with law from custody. If one could peruse the provisions of Section 12 of the Juvenile Justice Act, one could find that it creates a jurisdiction in a Board constituted under the Act to release any person accused of a bailable or non-bailable offence on bail with or without surety or for being placed under the custody of a Probation Officer or under the care of a fit person. While creating such jurisdiction in the Board, the later part of Section 12(1) creates an embargo upon the jurisdiction of the Board. If the Board is of the opinion:- (1) that reasonable grounds appeared for believing that the release was likely to bring the juvenile in conflict with law into association with any known criminal, or (2) expose him to moral, physical or psychological danger, or (3) that his release would defeat the ends of justice. - 4 - It is well known that if a law creates a disability and if the court wants to slap those disabilities upon a particular person in whose benefit a law has been formulated, the court or authority shall have to assign reasons based on concrete facts as to why it could reach any of the three conclusions. Merely noting down that the Board believes that any of the three conditions or circumstances appeared against the accused, not permitting it to direct his release would not be sufficient compliance of the legal provision. The material which could be produced before the court could be the basis for forming an opinion, which could create a bar in application of the jurisdiction of releasing a juvenile in conflict with law by the Board, which is vested in it by the first part of Section 12(1) of the Juvenile Justice Act. It was rightly contended by Sri R.B.S. Pahepuri, the learned counsel appearing for the petitioner, that the gravity or otherwise of the offence was never to be considered as a factor, which could influence a Board to refuse the prayer for being released on bail, which appears a general rule as per the first part of Section 12 of the Juvenile Justice Act. - 5 - Gravity of the offence could be one of the circumstances to say that the psychological danger could be roaming larger upon the juvenile, but that by itself could not be sufficient for snatching from a juvenile rights created by the first part of Section 12. Psychological danger may be a ground on expectation of the juvenile falling in the company of some dreaded criminals and that could be very readily decisively as a ground. The conditions prevailing at places where juveniles in conflict with law are placed in custody are well known and those places cannot be safe which could protect any juvenile from being exposed to moral, physical or psychological danger. The learned Judge ought to have considered this aspect of the matter, which appears flowing from Section 12 of the Act and ought to have considered the release of the petitioner. In the result, the prayer for being released from custody on bail of the present petitioner is hereby allowed. The present petitioner, namely, Asharfi Rai @ Amresh Yadav be released from custody on furnishing a bond of appropriate nature and character as could be indicated by the Board itself on the day it receives the copy of the present - 6 - order and which be communicated on the same to the counsel for the petitioner. This revision petition is allowed. Let this order be communicated to the Juvenile Justice Board, Samastipur in connection with Bibhutipur P.S. Case No. 118 of 2004 (Tr. No. 30 of 2008) through fax at the cost of the petitioner. DKS/ (Dharnidhar Jha, J.)