IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Crl.Revision No.1645 of 2009 (O&M)
Date of Decision: 14.7.2009
Gujju @ Gajender.
....... Petitioner.
Versus
State of Haryana.
....... Respondent.
CORAM: HON'BLE MR.JUSTICE MAHESH GROVER
....
Present: Shri Sandeep Chhabra,Advocate for the petitioner.
....
1. Whether Reporters of Local Newspapers may be allowed to
see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
....
Mahesh Grover,J.
Crl.Misc.No.33235 of 2009
The application is allowed and Annexure P3 filed along with it
is taken on record.
Crl.Revision No.1645 of 2009
This revision petition is directed against dated 15.6.2009
passed by the Sessions Judge, Faridabad vide which the appeal of the
petitioner has been dismissed.
The petitioner is facing allegations of having sodomized a boy
of five years of age leading to registration of F.I.R.No.145 dated 6.5.2009
under Section 377 of the I.P.C. at Police Station, Hodal. It has been pleaded
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by him that he is a juvenile and is entitled to concession of bail pursuant to
the provisions of Section 12 of the Juvenile Justice (Care and Protection of
Children) Act,2000 (for short, `the Act’). It has further been pleaded that
the Principal Magistrate, Juvenile Justice Board, Faridabad has wrongly
denied this concession to him vide order dated 16.5.2009 and his appeal
has also been dismissed by the impugned order.
While assailing the aforesaid orders, learned counsel for the
petitioner contended that Section 12 of the Act directs that a juvenile who
is brought before the Court to stand trial for an offence is ordinarily to be
released on bail with or without surety. He further contended that the only
reason why bail to such a juvenile can be declined is that he is likely to be
brought him into the association with any known criminal or that his release
would defeat the ends of justice. It is, therefore, his contention that the
petitioner being a juvenile could not have been declined the concession of
bail and since the aforesaid grounds have not been specified in the
impugned order, therefore, the decision of the Principal Magistrate, as also
that of the Sessions Judge are erroneous. To show prima facie that the
petitioner is a juvenile, reference has been made to the certificate, Annexure
P3, which has been placed on record along with Crl.Misc. No.33235 of
2009.
I have heard the learned counsel for the petitioner and have
perused the impugned orders.
Section 12 of the Act upon which reliance has been placed by
the learned counsel for the petitioner, is reproduced below:-
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“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 or 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 any
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 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 reading of the afore-quoted provisions leaves no room for
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doubt that ordinarily a juvenile is to be released on bail and the same is to
be denied to him only “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.” The petitioner has been accused of
subjecting a young boy of tender age to his carnal desires. The offence is,
therefore, of a heinous kind and one which shocks and revolts the
conscience of any right thinking person. The child, who has been subjected
to the lustful designs of the petitioner will naturally keep bearing
psychological scars of the unfortunate and reckless act of the petitioner.
The Court, while considering the prayer for bail is, therefore, to
take a holistic view of the situation while granting bail to a juvenile and
similarly, while declining the same by seeing whether the case falls within
the parameters of the conditions set out in Section 12 of the Act.
A juvenile, who steps into the arena of criminal activities, has
necessarily to be treated differently from an adult, who makes a foray into
the world of crimes. That is the essence of the Act, but when the act is the
one which reveals depravity of mind and gives a hint of a perverted psyche
to which if no check is put, is likely to cause more harm to the society, than
caused by a person, who merely inflicts physical harm to the others by
violence to body, then such a person, even if a juvenile does not deserves
the concession of bail.
In my opinion, the release the petitioner on bail is likely to
expose him to more moral and psychological pressures in life. An
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offender,like this when released is likely to invoke a sniggering attitude
amongst the ones who surround him and is also likely to invoke an equally
hateful response from the victim’s family, which may endanger him and
expose him to psychological pressures and physical harm. Therefore, the
prayer of the petitioner for bail necessarily has to be rejected, but, at the
same time, I cannot be oblivious to the provisions of Section 15 of the Act,
which is as follows:-
“15. 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
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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 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
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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 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.” (emphasis supplied).
There is no material before this Court to show as to whether the
aforesaid options have been explored by the Juvenile Justice Board in the
case of the petitioner, but, certainly he deserves to be counselled by a
professional psychiatrist so as to wean him away from the path that he has
adopted and also to ensure that his psyche is corrected and the society is
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saved from a possible paedophile.
The instant petition is, therefore, dismissed, but with a
direction to the learned Principal Magistrate, Juvenile Justice Board,
Faridabad to ensure that appropriate orders are passed, if not already passed,
by which the petitioner is subjected to professional counselling so as to
rectify his distorted thinking in order to prevent the recurrence of such act
and also to prevent him from growing into a threat to the society at large.
July 14,2009 ( Mahesh Grover ) "SCM" Judge