by Section 12 of the Act which provides for his
release on bail with or without surety. So much so
the objection that juvenile cannot be called upon
to execute a bond, on his release on bail is
totally irrelevant and that does not impinge his
right to seek bail or anticipatory bail as provided
by law. I hold that the petition for bail moved by
juvenile in conflict with law for his release on
bail under section 439 of the Code of Criminal
Procedure is entertainable and it has to be
disposed on its merits.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR.JUSTICE S.S.SATHEESACHANDRAN
MONDAY,THE 23RD DAY OF SEPTEMBER
Bail Appl..No. 6006 of 2013 ()
AFSAL IBRAHIM, AGED 17 YEARS,
Vs
STATE OF KERALA,
Citation;2014ALLMR(CRI)JOURNAL 150
Petitioner is a juvenile in conflict with
law who is proceeded as one among the accused
in a crime involving the offence under section
364A r/w 34 IPC. Application for his release
on bail moved by his father had been turned
down by the juvenile Justice Board vide
Annexure 4 order. Petitioner has therefore
moved this application under section 439 of the
Code of Criminal Procedure, for short the Code
for his release on bail.
2. A preliminary objection was raised by
the registry over the entertainability of the
petition. I have ordered for numbering the
petition to consider the objection raised later,
and, accordingly, the petition has been numbered.
3. Objection was raised by registry on the
premise that a juvenile cannot be called upon to
execute a bond and hence his bail application
would not lie before this court. Section 441 of
the Code no doubt mandates execution of a bond by
accused and his sureties for his release on bail.
However it has to be noted that where the accused
is a minor no bond need be executed by him and the
court can accept a bond executed by his sureties.
Section 448 of the Code is an exception relieving
the minor from the rigour of executing a bond as
mandated under section 441 referred to above.
Further more, so far as the release of a juvenile
in conflict with law on bail provisions of the
Juvenile Justice(Care and Protection of Children)
Act,2000, hereinafter referred to as the Act, shall
prevail over the provisions of the Code as spelt
out by sub section (4) of Section 1 of that Act
which reads thus:-
"Notwithstanding anything contained
in any other law for the time
being in force, the provisions of
this Act shall apply to all cases
involving detention, prosecution,
penalty or sentence of imprisonment
of juveniles in conflict with law
under any such law."
Bail to juvenile in conflict with law is governed
by Section 12 of the Act which provides for his
release on bail with or without surety. So much so
the objection that juvenile cannot be called upon
to execute a bond, on his release on bail is
totally irrelevant and that does not impinge his
right to seek bail or anticipatory bail as provided
by law. I hold that the petition for bail moved by
juvenile in conflict with law for his release on
bail under section 439 of the Code of Criminal
Procedure is entertainable and it has to be
disposed on its merits.
4. Crime in which petitioner is proceeded as
accused (A7) relates to the alleged abduction of
one Akash, aged 20 years, for ransom. Allegation is
that A1 to A4 in the crime abducted him from
Madurai where he studied in a college, brought him
in a vehicle to Nooranad and demanded ransom of
Rs.85,000/- for his release from his father,
defacto complainant, contacting him over the phone.
The other accused in the crime (A5 to A8) had been
engaged either to watch the presence of police or
to travel with the abducted victim in a vehicle to
the spot fixed for collecting the ransom from the
de facto complainant, is the further allegation.
De facto complainant who was contacted over phone
for ransom by one of the abductors informed police
of the abduction and thereupon spot fixed for
collecting ransom was kept under surveillance.
Victim abducted was brought in a vehicle by some of
the accused, including A7, to the above spot and,
then, noticing the presence of police there they
escaped in the vehicle with the victim and kept the
victim in illegal confinement till he was later
released by police while transported in a motor
vehicle by his abductors. Driver of the above
vehicle was apprehended by police, but, one among
the abductors (A1) who was in that vehicle with the
victim ran away and made his good escape. A1 was
arrested by police the next day and now he
continues in judicial custody. Petitioner (A7),
juvenile in conflict with law, allegedly,
involved in the crime, was arrested on 14.8.2013.
He was produced before the Juvenile Justice Board,
which ordered for keeping him in the Observation
Home, and it continues.
5. I heard learned counsel for petitioner and
also learned Public Prosecutor.
6. Learned counsel for petitioner submitting
that petitioner is innocent urged for his release
on bail. He is prepared to abide by any condition
imposed by this court and also willing to co-
operate with the investigation of the crime, is the
further submission of counsel. Father of the
petitioner is ready and willing to stand as surety
for him and also furnish an undertaking that he
will not get involved in criminal activities or
associate with any criminal, is the submission of
counsel. Petitioner is a student and also a NCC
Cadet submits the counsel relying on Annexure 2 and
3 produced with the petition. His application for
release on bail moved twice had been turned down by
the Juvenile Justice Board by Annexure 4 and 5
Orders without application of mind and also not
taking into account the relevant factors governing
release on bail on juvenile in conflict with law,
is the submission of counsel.
7.Other than the first accused and petitioner
(A7) rest of the culprits involved in the crime is
still at large, is the submission of learned Public
Prosecutor. Crime registered over the abduction of
Akash proceeded against eight accused persons, but,
now investigation is continuing only against six of
them, submits learned Public Prosecutor.
Involvement of petitioner juvenile in the grave
offence of abduction has been revealed by
materials gathered in the investigation and if
released on bail petitioner is likely to tamper
with the evidence and also threaten the witnesses,
is the objection canvassed by learned Public
Prosecutor to oppose his release.
8. Case Diary has been produced for my
perusal. Allegation imputed against petitioner is
that he also joined with the abductors of victim
when the victim was taken in a motor vehicle to
collect the ransom and noticing the presence of
police all of them escaped with the vehicle.
Petitioner, aged 17 years, associated with the
other accused in the abduction of victim, and
against one among the accused, it is alleged,
several crimes are registered for various penal
offences at different police stations.
Allegations imputed and facts and circumstances
present in the case give room to suspect complicity
of petitioner with the other accused in the offence
alleged. However, in considering application for
bail of a juvenile in conflict with law when he is
proceeded as an accused and kept in an Observation
Home, normally, the rule is to release him on bail
with or without surety except where it is shown
there are reasonable ground to hold that his
release would bring him into association with any
known criminal or expose him to moral, physical or
psychological danger, or his release would defeat
the ends of justice. His application for bail was
turned down by the Juvenile Justice Board vide
Annexure 4 order holding that there is reason to
believe that his release is likely to bring him
into association with known criminals or expose him
to moral, physical or psychological danger or that
his release would defeat the ends of justice.
After Annexure 4 order his second application had
been disposed 12 days later vide Annexure 5 order
stating the very same reason. Juvenile Justice
Board as seen from Annexure 4 and 5 Orders formed
the above conclusion on perusal of records of the
case and also report filed by the investigating
officer.
9. Petitioner in the present case was arrested
on 14.8.2013 and his second application for bail
had been declined vide Annexure 5 Order dated
29.8.2013. Section 13 of the Act mandates that
soon after the arrest of juvenile information of
his arrest has to be given to his parents or
guardian of the juvenile directing him to be
present at the Board before which the juvenile
will be produced. The officer in charge of the
police station or the special juvenile police unit
to which the juvenile is brought has also to inform
the probationary officer of his arrest to enable
him to obtain information regarding the antecedents
and family background of the juvenile. The object
behind the above prescription under section 13 of
the Act is to protect and safeguard the interest
of juvenile in conflict with law right from the
moment any criminal proceeding is initiated
against him. Information is given to the
Probationary Officer over the arrest of a juvenile
to get necessary information regarding his
antecedents not for the purpose of inquiry alone
that has to follow if any indictment is made on
completion of investigation but for other matters
also including the question whether his release on
bail is prevented by special circumstances
referred to in Section 13 of the Act. In the
context what is the general principle governing
grant of bail to a juvenile as covered under
section 12 of the Act assumes much significance.
That section reads thus:-
"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 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. (Sub section (2)
and (3) not required and
omitted)
Normal rule as spelt out by sub section (1) of
Section 12 of the Act is that the juvenile in
conflict with law is to be released on bail with or
without surety or placed under the supervision of
Probation Officer or under the care of institution
or fit person except in cases where the Board has
reason to believe that his release would 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.
10. The Board in the present case, evidently,
has not conducted any inquiry calling for report
from the Probationary Officer or with the father of
juvenile, who moved the application for his
release on bail, in forming an opinion that the
juvenile cannot be released on bail on the grounds
mentioned under Annexure 4 and 5 Orders. That
conclusion evidently has been formed solely on the
basis of records of the case and report of the
investigating officer. So far as the criminal
antecedents of the petitioner, juvenile in conflict
with law, or his family background, nothing on
record has been brought for consideration of the
Board while it disposed his application for bail.
No doubt the gravity of the offence imputed against
him and case records produced disclosing his
complicity, if any, in the crime, is a very
pertinent matter whether his release would defeat
the ends of justice. However, it is to be noted
that justice system as available to adult cannot
be extended to and applied to delinquent juvenile.
That is the reason why separate system known as
'juvenile justice' has been carved out for the
care, protection, development and rehabilitation of
neglected or delinquent juvenile. Rehabilitation
and social integration of a juvenile in conflict
with law is the outlook of the Act and when that be
so keeping the juvenile in conflict with law for
long period till the inquiry is over unless there
is sufficient justifiable reason to do so may cast
a stigma on him and also affect his development
and needs.
11. Petitioner in the case is stated to be a
student and his father has come forward to get him
released on bail undertaking that he will not
involve in any criminal activities till he
continues on bail. Social investigation report sent
to this Court by probation officer is favourable to
juvenile for his release on bail. That report
does not indicate of any special circumstance to
decline him bail. Having regard to the above report
and facts and circumstances involved in the case,
and also the period of detention eversince his
arrest on 14.8.2013, I find petitioner can be
released on bail at this stage.
Petitioner is directed to be released on bail
subject to the following conditions.
1) Petitioner is placed under
supervision of the probationary
officer, who shall file periodical
reports over the Juvenile before
the Board till the inquiry against
him is completed in the
proceedings.
2)Father of petitioner shall stand
as a surety for release of
petitioner on bail. He shall
execute a bond for Rs.10,000/-
undertaking good conduct of
juvenile and also his keeping away
or associating with criminals while
he continues on bail in the present
proceedings.
3) Petitioner and his father shall
report before the Juvenile Justice
Board as and when directed without
default till the proceedings are
over.
4)In the event of any adverse
report filed against the juvenile
by the probation officer or on
any default or violation of the
condition imposed above, it is open
to the Juvenile Justice Board to
revoke the bail granted to
petitioner without any further
orders from this court, but, in
accordance with law.
S.S.SATHEESACHANDRAN
JUDGE
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