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Uttam vs State Of Haryana on 21 August, 2018

Crl. Revision 2504 of 2018 1

IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH

Criminal Revision 2504 of 2018 (OM)
Date of Decision: 21.8.2018

Uttam
…Petitioner

Versus
State of Haryana
…Respondent

CORAM:- HON’BLE MS. JUSTICE JAISHREE THAKUR

Present:- Mr. Arjun Lakhanpal, Advocate
for the petitioner.

Ms. Priyanka Sadar, AAG, Haryana.

JAISHREE THAKUR, J.

Learned counsel for the petitioner has filed an application for

placing on record an affidavit of the maternal uncle of the petitioner as

Annexure P/2 in Court today.

The application is allowed and the affidavit is taken on record.

Registry to number the application.

Main case

1. This is a revision that has been filed seeking to challenge the

order dated 9.7.2018 passed by the Principal Magistrate Juvenile Justice

Board, Hisar, declining bail to the petitioner as well as the order passed by

the Additional Sessions Judge, Hisar, affirming the said order in appeal.

2. In brief, the facts are that an FIR was registered on the basis of

a statement of Vinod Kumar son of Deep Chand Sharma, on the allegations

that on 4.7.2018 at about 6 p.m., Uttam son of Rajpal (petitioner herein)

came to his house and enticed his son Yash to come out on the pretext of

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flying a kite, where he committed carnal intercourse with his son. His son

narrated the incident to him, which led to the registration of the FIR under

Section 377 IPC and Section 4 of the Protection of Children From Sexual

Offences Act, 2012. The petitioner was arrested on 5.7.2018. The

application was dismissed by the Principal Magistrate Juvenile Justice

Board, Hisar, on the ground that if the juvenile, being in conflict with law,

Hisar, is released on bail, he may pressurize the prosecution witnesses,

which may frustrate the interest of justice and the said order was affirmed in

the appeal.

3. Learned counsel appearing on behalf of the petitioner contends

that both the orders passed by the courts below are not sustainable, in view

of Section 12 of the Juvenile Justice Act, 2015, while further arguing that

the petitioner has been falsely implicated in the case. It is contended that by

virtue section 12 of the Juvenile Justice Act, a juvenile is entitled to bail as a

matter of right, unless his case falls in the exceptions carved out in the

provision. It is argued that nothing is available on the record to show that

any of the 3 exceptions specified under section 12 (1) of the Act exists for

the bail to have been denied. Reliance is placed upon judgments rendered in

Gaurav Versus State Of Haryana 2016 (5) RCR (Criminal) 781,

Sandeep Alias Sippy Versus State Of Punjab 2016 (3) RCR (Criminal)

776, Sandeep Versus State NCT Of Delhi 2008 (1) RCR (Criminal) 146

in support of arguments raised. It is also argued that Social Investigation

Report does not suggest that in case the petitioner is released on bail, it

would bring him in association with known criminals or expose him to

moral, physical or psychological danger or that his release would defeat the

ends of justice.

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4. Per contra, learned counsel appearing on behalf of the

respondent–State opposes the grant of bail on the ground that the petitioner

herein is residing in the same vicinity as that of the victim, while also

arguing that his release would bring him in association with known

criminals and would expose him to moral, physical or psychological danger.

5. I have heard learned counsel for the parties and perused Section

12 of the Juvenile Justice Act, which 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 [for 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 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 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-

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section (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 the aforesaid provision would reveal that a juvenile is to

be released on bail. It is a mandatory requirement since the wording of the

section is ‘be released on bail with or without surety’. It is only in certain

circumstances, as spelt out under Section 12 (1) that bail can be denied, that

is, if the court forms an opinion that the juvenile if released would come into

association with any known criminal or be exposed to moral, physical or

psychological danger or that his release would defeat the ends of Justice.

6. The law in this regard is well settled. In Prakash Versus State

of Rajasthan 2006 Criminal Law Journal 1373 it has been observed as:

“9. At the time of consideration of bail under section 12 of the

Act, the gravity nature of offence has no relevancy. The

language of Section 12 of the Act using the word ‘shall’ is

mandatory in nature and providing non obstante clause by

using the expression “notwithstanding anything contained in

the code of criminal procedure, 1973 (2 of 1974) or any other

law for the time being in force be released on bail” closed

shows the intention of the legislature to grant bail to the

delinquent juvenile offender by releasing him on bail who is

arrested or produced before a court; however, with exception

to release him on bail if they are reasonable grounds for

believing that his release is likely to bring him into association

with any known criminal or expose him to moral physical or

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psychological danger or that his release would defeat the ends

of Justice. It is for the prosecution to bring on record such

material while opposing the bail and to make out any of the

ground is provided in the section which may persuade the court

not to release the juvenile on bail.”

7. Both the impugned orders do not reflect as to how the petitioner

herein would be put in a moral, physical or psychological danger on his

release or that his release would defeat the ends of justice. As argued by the

learned counsel for the petitioner, there is nothing on record to suggest the

same. The only argument that has been raised by the learned counsel

appearing for the respondent–State is that the minor victim resides in the

neighbourhood of the petitioner and therefore, there is every possibility of

the minor being intimated/threatened or influenced and face a degree of

embarrassment in case the petitioner is released on bail.

8. In order to allay the apprehension expressed by the learned

counsel for the State, learned counsel for the petitioner contended that the

juvenile in conflict with law on his release would reside with his maternal

uncle, namely, Kuldeep Singh, resident of Gali No.11, Tibba Danesher

Hisar. A statement to this effect was also made by Kuldeep Singh in court

on 20.8.2018, when he was present in Court. Therefore, this Court directed

him to file an affidavit, which, as already noticed, has been filed today and

the same is taken on record.

9. As per the affidavit furnished, Kuldeep Singh, maternal uncle

has stated that he is ready and willing to keep the petitioner with him at his

residence and would comply with the terms and conditions imposed by this

Court.

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10. For the reasons afore-stated and taking into consideration the

affidavit filed by Kuldeep Singh, maternal uncle of the petitioner, and

Section 12 of the Juvenile Justice Act, which makes it obligatory for the bail

to be granted to the juvenile in conflict with law, the present revision is

allowed. The petitioner be released on bail subject to furnishing bail bonds

to the satisfaction of the Principal Magistrate Juvenile Justice Board/Duty

Magistrate, Hisar.

11. The revision allowed on the aforesaid terms.

21.8.2018 (JAISHREE THAKUR)
prem JUDGE

Whether speaking/reasoned Yes
Whether reportable No

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