SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Vinay Tiwari vs The State Of Madhya Pradesh on 27 July, 2018

-1- Cr.R. No.3125/2018
A.F.R

HIGH COURT OF MADHYA PRADESH, JABALPUR

Criminal Revision No. 3125 of 2018
Parties Name Vinay Tiwari, S/o Naval Kishore
Tiwari, aged about 17 years,
through natural guardian his
father Naval Kishore Tiwari, S/o
Shri Heeralal Tiwari, aged about
40 years, Occupation Private Job,
R/o Shiv Colony, Sarla Nagar,
Maihar, District Satna (M.P.)

-Versus-

The State of M.P. through Police
Station Maihar, District Satna
(M.P.)

Bench Constituted Hon’ble Shri Justice B.K.
Shrivastava
Order passed by Hon’ble Shri Justice B.K.
Shrivastava.
Whether approved for Yes/No
reporting
Name of counsels for parties For applicant : Shri V.K. Shukla,
Advocate.

For respondent/State : Shri
Neeraj Ashar, Panel Lawyer
Law laid down
Significant paragraphs
numbers

ORDER

(27.07.2018)

This revision has been filed under Section 102 of Juvenile Justice
(Care and Protection of Children) Act, 2015 (hereinafter referred
to as “Act, 2015”), on 02.07.2018 by Vinay Tiwari, through his

-2- Cr.R. No.3125/2018
A.F.R

natural guardian father Shri Naval Kishore Tiwari, S/o Shri Heeralal
Tiwari against the order dated 25.06.2018 passed in Criminal
Appeal No.91/2018 passed by Smt. Deepika Malviya, IV ASJ, Satna
(M.P.).

2. By the impugned order the Court below has dismissed the appeal
filed by the applicant under Section 101 of Act, 2015, which was
filed against the order dated 20.06.2018 passed by Juvenile
Justice Board.

3. It is an admitted position that the applicant was arrested on
16.06.2018 in connection with Crime No.325/2018, registered at
Police Station Maihar, District Satna under Sections 363, 376(2)

(n), 347, 368, 354(2)/34 of IPC and Sections 3/ 4 and 7/ 8 of
POCSO Act. He was produced before the Juvenile Justice Board
and an application was moved under Section 12 of the Act, 2015,
which was rejected on 20.06.2018. Thereafter the applicant filed a
Criminal Appeal No.91/2018, which has been rejected by IV ASJ,
Satna. It is also an admitted position that in this case there are
two prosecutrix. The date of birth of first prosecutrix is 10.12.2001
and date of birth of second prosecutrix is 05.05.2002. The date of
incident is 02.06.2018. Therefore, it is not in dispute that both the
prosecutrix are girls below 18 years of age and come in the
category of “child” under Section 2(12) of the aforesaid Act. It is
also an admitted position that the applicant Vinay Tiwari, born on
15.08.2000, therefore, he was also under the age of 18 years on
the date of incident i.e. 02.06.2018.

4. It is argued by the learned counsel for the applicant that the
learned lower Court did not appreciate the material placed on
record and not assigned any cogent and valid reason for rejection
of the application. The applicant is a student of B.Sc 1 st year. He
has not committed any crime. Therefore, he should be enlarged
on bail by accepting the appeal.

5. On the other side, learned Panel Lawyer for the State strongly
opposed the revision and submits that looking to the act of the

-3- Cr.R. No.3125/2018
A.F.R

accused the learned lower Court has not committed any mistake
by rejecting the application of the applicant.

6. The appellate Court, IV ASJ, Satna dismissed the appeal by
mentioning the ground that if, applicant will be released on bail
then he will come in the contact of the absconding accused and it
will harm his moral and physical physiological character.

7. Juvenile Justice (Care and Protection of Children) Act, 2015 has
came into force since 12.01.2016. The provision for bail to the
juvenile has been made in Section 12(1) of the aforesaid Act,
which reads as under:-

“12. Bail to a person who is apparently a
child alleged to be in conflict with law.- (1) when
any person, who is apparently a child and is
alleged to have committed a bailable or non-
bailable offence, is apprehended or detained by
the police or appears or 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
person:

Provided that such person shall not be so
released if there appears reasonable grounds for
believing that the release is likely to bring that
person into association with any known criminal
or expose the said person to moral, physical or
psychological danger or the person’s release
would defeat the ends of justice, and the Board
shall record the reasons for denying the bail and
circumstances that led to such a decision.”

8. In the case of Hansraj Vs. State of M.P. 2005(2) ANJ (M.P.)
407, it has been held that if the conditions mentioned in Section
12 are not available then granting bail to the juvenile is
mandatory. In this case juvenile was absconded about period of
three months and it was argued that he was tried to get the bail.
The Court has held as under:-

“The bail to the juvenile offender is
mandatory. It can only be rejected on the
ground enumerated under Section 12 of the

-4- Cr.R. No.3125/2018
A.F.R

Juvenile Justice (Care Protection of Children)
Act, 2000 (for short the ‘Act’). The grounds of
rejection under Section 12 of the Act are that if
there appears reasonable ground for believing
that the release is likely to bring him into
association with any known criminal to expose
him to moral, physical or psychological danger or
that his release would defeat the ends of justice.

The applicant is a first offender. The
conclusion of the Courts below that his case falls
under Section 12 of the Act is based merely on
the ground that there is a prima facie case
against him and he was absconding for 3
months. The explanation of the applicant is that
he was trying for the anticipatory bail and as
such, he was arrested after the period of three
months. The purpose of the provisions of
Section 12 of the Act will be defeated if the bail
of the juvenile offender is rejected without the
reasonable ground and on surmises and in a
casual manner.”

9. In the case of Gadoo Vs. State of M.P. 2006(1) MPJR, short
Note 35, it has been held that the Court should keep in mind the
provision of Section 12 at the time of consideration of the
application for bail filed by the juvenile. In this case the Court has
mentioned as under:-

” ……………….. it is apparent that application for
bail was dismissed by the trial court on factual
matrix of the case and on appeal this order has
been affirmed on the ground that on releasing
him on bail the applicant would be involved in
same activities and try to influence the
prosecutrix who is residing in the same locality,
but the provisions of Section 12 of the said Act
was not considered in its actual spirits.
……………….. In view of aforesaid mandatory
provisions of the Act only on certain grounds the
bail application could have been dismissed which
were not in existence in the case at hand. So the
applicant ought to have been released on bail
but the provisions were not considered with its
real spirits. The grounds which has been put
forth by the respondent for dismissing the
revision have not appealed me. Even otherwise
in the light of aforesaid cited cases on behalf of
the applicant he is entitled to release on bail.
Although the Rajendra Mishra’s case (supra) was
decided under the old Act, but the principle was
laid down in view of mandatory provisions of the
Act because there is no vast difference in
between the old and new Act regarding

-5- Cr.R. No.3125/2018
A.F.R

provisions of bail to the juvenile. While the
Ranjit Singh’s case (Supra) was decided by
considering the said section 12 of the new act
and principle laid down in it is directly applicable
to the case at hand.”

10. In case of Hakam Vs. State of M.P. ILR 2011 MP.2237 , it has
been mentioned that the bail to the juvenile is mandatory till the
matter is not came under the category of 3 exception mentioned
in Section 12. The Court has observed as under:-

“It is well settled legal position that once a person
is held to be a juvenile delinquent, then Section
12 of the Act, 2000 would govern the question
of grant of bail and custody of juvenile and it will
not be governed by the provisions of the Code of
Criminal Procedure, 1973.

The position of law with regard to grant of bail
to a juvenile under Section 12 of the Act, is clear
that a juvenile has to be released on bail
mandatorily unless and until the exceptions
carved out in the section itself are made out.
The first exception is a reasonable ground for
believing that the release is likely to bring the
juvenile into association with any known
criminal. The second exception is that the
release of the juvenile is likely to expose him to
any moral, physical or psychological danger.
Both these exceptions are not made out because
there is no material available in the record of the
case to suggest any such association or
exposure. The third exception is that the release
of the juvenile would defeat the ends of the
justice.

The impugned order is based on the serious
nature of the offence as well as the release of
the petitioner not being in the interest of justice.
The nature of the offence is not one of the
conditions on which bail can be granted or
refused to the juvenile. Bail, in respect of a
juvenile, has to be considered purely under the
parameters of Section 12 of the Act which
requires bail to be granted mandaorily unless the
court feels that the release of the juvenile is
likely to bring him in the association of any
known criminal or expose him to moral, physical
or psychological danger or that his release would
defeat the ends of justice.”

11. In the case of Rahul Vs. State of M.P. 2011 (4) MPHT 113
the Court considered the case of Rajkumar Vs. State of M.P.
2008(1) MPWN. 94 and said that the gravity of offence cannot be

-6- Cr.R. No.3125/2018
A.F.R

made the sole ground for rejection of the bail of juvenile. In this
case the Court has held as under:-

“In the case of Raj Kumar v. State of M.P., 2008
(I) MPWN 94, it has been held that,- the bail
application of juvenile cannot be rejected on the
ground of seriousness of crime. There was no
ground of believing that he will come into
association of known criminals the bail granted
to the juvenile. The similar view was adopted in
the case Rahul Mishra v. State of M.P., 2001 (I)
MPWN 76. Since there is no criminal history
against the applicant and there is no legible
ground to believe that he will come into
association of known criminal the applicant is
entitled for bail.”

12. The same principle has been reiterated in Ritesh Vs. State of
M.P. 2011 (4) MPLJ 226. This case was related to Section 307
of IPC and Section 25 and 27 of Arms Act. The High Court
observed as under:-

“What is discernible from Section 12 of Juvenile
Justice (Care Protection of Children) Act, 2000
governing bail to a juvenile is that a juvenile in
conflict with law should normally be granted bail
unless his case falls within one of the exceptions
engrafted thereunder and those exceptions are
that there appears to be 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 psychological
danger or that his release would otherwise defeat
the ends of justice. Unless the aforesaid rider is
satisfied, bail to a juvenile should not be refused.
It is significant to note that the gravity of the
offence or its seriousness alone, divorced from
the above exceptional reasons , has not been
taken as a rider by the legislature to deny bail to
a juvenile in conflict with law. It is only when
there is danger to his moral, physical or
psychological qualities or likelihood of his
attaching himself with criminals or that his
release may otherwise defeat the ends of justice,
the Board or the Court may not exercise
discretion in his favour and enlarge him on bail.
For such a determination, no hard and fast rule
of inflexible nature can be laid down as it
depends on the facts and circumstances peculiar
to each case.

In the opinion of this Court, the Juvenile Justice
Board may be justified in denying bail to a
juvenile involved in a heinous crime only if there
is material before it to form a prima facie opinion

-7- Cr.R. No.3125/2018
A.F.R

on the aspects carved out as exception to rule of
bail in section 12 of the Act itself. There must be
some mechanism with the Juvenile Justice Board
to gather material and form an opinion as to
whether the juvenile need to be denied bail by
bringing his case under the exceptions to bail
engrafted in section 12. The opinion to be
formed by the Board, by no means, can be
subjective and has to be objective. Either the
prosecution should place some prima facie
material before the Board or the Court to show
that release of a juvenile on bail may expose him
to moral, physical or psychological danger or the
Board may obtain a report from the Probation
Officer attached to the Board regarding
antecedents and circumstances attended to the
juvenile, both pre and post crime and it is only
thereafter the Board or the Court should
crystallise its opinion regarding release or non-
release of the juvenile on bail, though involved in
a heinous crime. A reference to the statutory
provisions governing bail to a juvenile contained
in section 12 would show that there is a mandate
of law that the juvenile has to be released on
bail, except only in those cases where the case
falls in one or the other exception engrafted by
the legislature in section 12 itself.”

13. Therefore, looking to the aforesaid legal position it can be said
that the release of juvenile on bail is his right. The release on bail
of such person may be refused where there appears reasonable
ground to believe that the release is likely to bring the person into
the association with the unknown criminal or expose the said
persons to moral physical or psychological danger or the person
would defeat the ends of justice.

14. Now we look into the facts of this case. The complainant Rajkumar
lodged the missing person report on 06.06.2018 at Police Station
Maihar, District Satna (M.P.). Upon this report Crime No.325/2018
under Section 363 of IPC was registered. As per this report the
daughter of the complainant aged about 17 years and daughter of
Gayaram Pal aged about 16 years had gone at about 11:00 am on
02.06.2018 to collect the books from the resident of their friend,
but they did not return. The complainant and other persons
searched near about place but could not trace out both the girls.
Thereafter both girls recovered on 13.06.2018. The statements of

-8- Cr.R. No.3125/2018
A.F.R

both the prosecutrix have been recorded by the police under
Section 161 of Cr.P.C and also recorded by JMFC Amarpatan,
District Satna on 18.06.2018 under Section 164 of Cr.P.C.

15. It appears from the statement of both the girls and also from the
evidence collected that the applicant and co-accused Shivam were
following both the prosecutrix since 2 years back. They
pressurized the girls to leave their home. Thereafter on
02.06.2018 upon instructions of accused, both the girls left their
home and reached at railway station Maihar. Both the accused
also reached there. Thereafter Sachin took the ticket upto
Bhusawal by Janta Express. They also gave mobile phone in which
sim was inserted which belongs to accused Sachin and Shivam
was owner of the mobile. Thereafter they reached Bhusawal and
again upon instructions of the accused they reached Surat where
Shivam met them. From Surat, Shivam call his cousin brother
Mahesh who took both the girls to Balsada and thereafter Daman.
The girls were kept in the house of Mahesh in Daman. It is also
alleged that both the accused and Mahesh committed sexual act
with both the prosecutrix. One day one prosecutrix heard talking
of Mahesh who was talking with unknown person regarding two
girls and asking that how much money will get if he reach Nepal
with the aforesaid two girls. After hearing the plan of same, the
prosecutrix call her cousin brother Shanker Pal, who was residing
in Gujrat. Thereafter Shanker Pal took back both the prosecutrix.
Both the prosecutrix are minor. Their consent regarding
intercourse is immaterial. Both the accused committed sexual
intercourse and took them upto Surat. Thereafter, they handed
over them to Mahesh who took them to Daman and accused
Mahesh tried to sell out both the girls by sending them to Nepal.

16. Offence has been registered under Sections 363, 366, 376(2)(n),
368, 147, 354(2)/34 of IPC. As per Section 15(1) read with Section
18(3) as defined in Section 2(33) of the Act, 2015, in a case of
heinous offence, if the juvenile is between 16 to 18 years the
Court may sent such case for trial to the Children Court.

-9- Cr.R. No.3125/2018
A.F.R

17. As per 15-A of the Act, 2015 it is the duty of the trial Court to
make assessment of heinous offence in which juvenile has
committed a heinous offence and completed the age of 16 years.
The Board shall conduct the preliminary assessment with regard to
his mental and physical capacity to commit such offence,
availability to understand the consequence of the offence and the
circumstances in which the alleged offence is committed and
thereafter the Board may pass an order as per sub Section 3 of
Section 18 of the Act, 2015. As per said provision the Board is
required to pass an order to try the case by Children Court having
jurisdiction to try such offence.

18. Whether matter came under the perview of exception of Section
12 or not ? This question may be decided upon the basis of
circumstances of the case. Because direct evidence is impossible,
the Court can draw the conclusion upon the basis of material
available on the record, the manner in which the crime is
committed and upon the basis of the report of Probation Officer
etc.

19. In this case report of Probation Officer dated 20.06.2018 is on
record. As per aforesaid report the Probation Officer mentioned
that the applicant is a disobedient (vuq’kklughu). It is also reported
that “fd’kksj ij laxr dk vlj gS “. Therefore, looking to the aforesaid
report, it cannot be said that the report is supported to the
applicant. On the other hand, it can be said that the applicant is in
contact with other persons, who are not the man of strong/good
character/reputation.

20. The manner in which the crime has been committed is also shows
that different position. The accused was in contact with co-
accused Mahesh (resident of Daman) who made a plan to sell out
the girls after sending them to Nepal. Therefore, it may be
presumed that the applicant is in the contact of such persons who
are involved in sex trading business, in which they any how
collected the girls from the different places of country and sell out
them in Nepal. The date of birth of the accused is 15.08.2000, it

-10- Cr.R. No.3125/2018
A.F.R

means he is near about the age of 18 years, therefore, it may also
be presumed that he is capable to understand the act done by
him.

21. Therefore, in this case restrictions mentioned in Section 12 are
attracted. Looking to the aforesaid situation it can be very well
understand that if the accused will released on bail, he will
definitely come into the contact with the known criminals and it
will be harmful to his moral and physical character and the release
will defeat the ends of justice. Therefore, the Juvenile Board as
well as IV ASJ, Satna have not committed any error by rejecting
the applications/bail. Hence this revision petition having no force,
therefore, dismissed.

(B.K. Shrivastava)
Judge

Vin**
Digitally signed by VINOD
SHARMA
Date: 2018.07.30 13:21:27
+05’30’

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2020 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation