ORDER
Sunil Kumar Sinha, J.
1. In this revision, filed under Section 53 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the “Act 2000”), the two juveniles namely Bharat @ Bhrat and Shobha @ Sunny have called in question the legality and propriety of the order dated 15-2-2005 passed in Criminal Appeal No. 36 of 2005 by the Sessions Judge, Raipur, arising out of the order dated 19-1-2005 passed in Criminal Case No. 462 of 2004 by the Juvenile Justice Board, Raipur (CG). The Board had dismissed the bail; application of these juveniles filed under Section 12 of the Act 2000 by the said order dated 19-1-2005 which was confirmed in appeal filed under Section 52 of the aforesaid Act.
2. Briefly stated facts giving rise to the filing of the present revision are as follows :–
These two juveniles were arrested on 4-12-2004 at 18.00 hours in connection with Crime No. 584/2004 registered at Police Station, Mahasamund for the offence punishable under Section 363 read with Section 34 of the IPC. Their first remand was taken by the police on 5-12-2004 and they were sent to the Samprekshan Grih at Mana (Raipur) in judicial custody for further production on 18-12-2004 before the Chief Judicial Magistrate (Member of the Board). Thereafter, on subsequent dates time was granted to the prosecution for filing the charge-sheet and ultimately on 22-12-2004 the charge-sheet was filed against the 3 persons (adding one more juvenile namely Kuleshwari). It was stated by the prosecution that on 21-12-2004, when these two juveniles (applicants) were taken to the hospital by the police, they ran away on the way while they were returning from the Hospital to the Samprekshan Grih. On this assertion, warrant of arrest was issued against them. However, on 5-1-2005 they themselves surrendered before the Juvenile Board by filing an application through their Counsel. Thereafter, on 19-1-2005, an application for releasing them on bail was filed and the same was rejected by the Board vide order dated 19-1-2005. It is against this order, an appeal was filed before the Sessions Judge which was rejected by impugned order dated 15-2-2005 which has been challenged in the present revision. This Court called for the records of the Juvenile Justice Board as well as the Appellate Court on 21-3-2005.
3. Learned Counsel for the applicants submits that the juvenile Justice Board as well as the Appellate Court lost sight of the mandatory provisions of Section 12 of the Act 2000 and committed an error of law by rejecting the bail application filed by the applicants. She refers to the various provisions of the Act and argues that the word like “shall” used in Section 12 is writ large to show that the Board was under mandatory obligation to release the applicants on bail when there was no dispute regarding their age and one of the co-accused namely Kuleshwari has been released on bail by the Board itself.
4. I have heard the learned Counsel for the parties and have perused the records of the Sessions Court as well as the Board.
5. The considerations for bail are summarised vide Section 12 of the Act 2000 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 personal 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 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 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 enquiry regarding him as may be specified in the order.”
6. Sub-section (1) of Section 12 provides that any juvenile accused of a bailable or non-bailable offence if arrested or detained or appeared or brought before the Board, he/she shall be released on bail notwithstanding anything contained in the Code of Criminal Procedure or any other law for the time being in force. The words used by the Legislature like “notwithstanding anything contained in the Code of Criminal Procedure, 1973” or “in any other law for the time being in force”, indicate that the considerations which are germane for granting or refusing bail to the persons who are not juvenile delinquents shall not come into play for granting or refusing bail to them”. [2001(1) MPLJ Page 172, Rahul Rajendra Mishra v. State of M.P.].
7. The use of word “shall” by the Legislature in the provisions of Section 12 of the Act is of great significance. As interpreted earlier, the use of word “shall” raises a presumption that the particular provision is imperative, but this prima facie inference may be rebutted by other considerations such as object and scope of the enactment and the consequences flowing from such construction. The word ‘shall” has been construed as ordinarily mandatory, but it is some times not so interpreted if the context or the intention otherwise demands. (Please see: , M/s. Sainik Motors, Jodhpur and Ors. v. State of Rajasthan).
8. It has been laid down in the matter of State of Uttar Pradesh and Ors., Appellants v. Babu Ram Upadhya, Respondent, that when a statute uses the word “shall, prima facie, it is mandatory, but the Court may ascertain the real intention of the Legislature by carefully attending to the whole scope of the statute. For ascertaining the real intention of the Legislature the Court may consider, inter alia, the nature and the design of the statute, and the consequences which would follow from construing it the one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstance, namely, that the statute provides for a contingency of the non-compliance with the provisions, the fact that the non-compliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow therefrom, and, above all, whether the object of the legislation will be defeated or furthered.
9. It has further been held in the matter of Govind Lal Chaggan Lal Patel v. The Agriculture Produce Market Committee and Ors., , that the governing factor is the meaning and intent of the Legislature, which should be gathered not merely from the words used by the Legislature but from a variety of other circumstances and considerations. In other words, the use of the word ‘shall’ or ‘may’ is not conclusive on the question whether the particular requirement of law is mandatory or directory. But the circumstance that the Legislature has used a language of compulsive force is always of great relevance and in the absence of anything contrary in the context indicating that a permissive interpretation is permissible, the statute ought to be construed as peremptory. One of the fundamental rules of interpretation is that if the words of a state are themselves precise and unambiguous, no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the Legislature.
10. In the light of the above provisions of interpretation, if we examine the provisions of Section 12 of the Act, then, it makes it manifest that ordinarily the Board is under obligation to release the juvenile on bail with or without surety, but the juveniles shall not be so released in certain circumstances as the latter part of the section also uses the word “shall” imposing certain mandatory conditions prohibiting the release of the juvenile by the Board. These conditions are as follows :–
(i) if there appears reasonable grounds for believing that the release is likely to bring him into association with any known criminal; or
(ii) expose him to moral, physical or psychological danger; or
(iii) that his release would defeat the ends of justice.
Therefore, it is clear that when an application is filed by the juvenile for releasing him on bail under Section 12 of the Act, ordinarily it would be obligatory on the part of the Board to release him on bail, but he shall not be released on bail if it appears to the Board that either of the 3 conditions, referred to above, is coming in the way of so releasing the applicant or the juvenile on bail. The provisions of Section 12 of the Act are balancing from both the sides. On one hand, it creates an obligation on the Board for releasing the juveniles on bail and on the other hand it prohibits the Board from so releasing the juveniles in the particular circumstances enumerated therein. If we divide Sub-section (1) of Section 12 into two parts– one with relation to obligation to release on bail and the other with relation to prohibitions against the said obligation, we find that the word “shall” used by the Legislature in both the parts is a common factor. The intention of the Legislature in commanding the release of a juvenile on bail is referable to the object of the Legislation, which in fact provides for proper care, protection and treatment by catering to their developmental needs, and by adopting a child friendly approach in the adjudication and disposition of matters in the best interest of the children and for their ultimate rehabilitation through various institutions established under this enactment. Since the enactment is a beneficial legislation, it is for this reason various prohibitions in mandatory forms have been provided in the latter part of Section 1(1) of the Act.
11. Therefore, it is clear that ordinarily the bail is to be granted to the juvenile under Section 12 of the Act, but it shall not be granted to them if it appears to the Board that either of the 3 conditions mentioned above is existing in the matter on the reasonable grounds placed before it.
In view of the above discussions, the arguments advanced by the learned Counsel for the applicants that the Board is always under mandatory obligation to release the applicants on bail can not be sustained.
12. Now if we examine the case in hand, it appears that condition Nos. 1 and 2 are not the factors leading to the dismissal of the application. The dismissal by the Board can be classified under condition 3 of Sub-section (1) of Section 12 which provides that if the release of the juvenile would defeat the ends of justice, he shall not be so released on bail. The Board has considered this circumstance that both the juveniles ran away when they were being brought back from the Hospital to the Samprekshan Grih. While considering the circumstance vide the impugned order dated 19-1-2005, the Board did not take care about the allegations made in the application of surrender filed by the juveniles on 5-1-2005. It has been stated vide Para 3 of this application (Pg. 75 of the Lower Court record) that some other child delinquents who are elder to the applicants, they used to assault them. The complaints to this effect were also made to the officers of the Samprekshan Grih. When no action was taken on their complaints, they ran away on account of fear from the children’s home. This ground in the application has not been dealt with either in the order of the Board or in the appellate order of the Sessions Court. In a matter filed by the juvenile under a benevolent legislation, it is incumbent upon the authorities to deal with the grounds raised by the juveniles and to pass some order on it. If after living for sometimes in the children’s home the juveniles ran away from there due to fear in their minds and further surrender on their own motion (though with the interference of the guardians) and apply for bail, then it can not be said that the release of the juveniles on bail in such a circumstance would defeat the ends of justice.
13. I find that the order dated 19-1-2005 passed by the Board as well as the impugned order dated 15-2-2005 passed by the Sessions Judge are not in accordance with law. They are set aside. The revision is allowed. It is directed that both the applicants shall be released on bail on furnishing a bond in sum of Rs. 5000/- each by their father/mother or guardian with one surety each of the like amount to the satisfaction of the Board or the authority concerned. The records of the Board as well as the Sessions Court be sent back forth with. The parties are entitled to certified copy of this order.