Brusaba Dhangdamajhi Vs State of Odisha

IN THE HIGH COURT OF ORISSA AT CUTTACK

CRLA No.576 of 2024

(An appeal under Section 101(5) of the Juvenile Justice (C & P) Act, 2015)

…. CICL(Child in Conflict with Law) Appellant -versus…. State of Odisha Respondent Appeared in this case:- For Appellant : Mr. M.K. Chand, Advocate For Respondent : Mr. T.K. Acharya, Learned Additional Standing Counsel CRLA No.617 of 2024 …. CICL(Child in Conflict with Law) Appellant -versus…. State of Odisha Respondent Appeared in this case:- For Appellant : Mr. A. Panda, Advocate For Respondent : Mr. T.K. Acharya, Learned Additional Standing Counsel

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CORAM: JUSTICE A.C. BEHERA

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JUDGMENT Date of hearing : 11.12.2024 / date of judgment : 13.12.2024

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A.C. Behera, J. Since, both the appeals under Section 101(5) of the Juvenile Justice (Care and Protection) Act, 2015 (in short „the JJ(C&P) Act, 2015) have arisen out of one matter vide J.C.T. Case No.61 of 2023, then

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both the appeals have been taken up together analogously for their final disposal through this common order.

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The CICLs being the appellants, they(CICLs) have preferred these two appeals under Section 101(5) of the Juvenile Justice (Care and Protection) Act, 2015 (in short „the JJ(C&P) Act, 2015) challenging the rejection order of their bail passed on dated 03.05.2024 by the learned Additional Sessions Judge-cum-Special Judge(Children‟s Court), Bhawanipatna in J.C.T. Case No.61 of 2023.

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The factual backgrounds of these appeals under Section 101(5) of the J.J.(C&P) Act, 2015, which prompted the CICLs for preferring the same are that, when as per order dated 03.05.2024 in J.C.T. Case No.61 of 2023, the learned Additional Sessions Judge-cum-Special Judge(Children‟s Court), Bhawanipatna rejected the bail applications of the CICLs assigning the reasons that,

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“it appears that, there is reasonable grounds for believing that, the release of the CICLs on bail likely to bring them into association with any known criminal or expose them to moral, physical or psychological danger and similarly, it would defeat the ends of justice, hence, it is not proper to allow bail applications of the CICLs, because, they may threaten the victim after their release on bail and may also influence witnesses, for which, their prayer for bail is rejected.”

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Then, they (CICLs) preferred these two appeals being the

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appellants challenging the said order of rejection of their bail passed on

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dated 03.05.2024 in J.C.T. Case No.61 of 2023, by the learned

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Additional Sessions Judge-cum-Special Judge(Children‟s Court), Bhawanipatna.

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I have already heard from the learned counsels for the appellants and the learned Standing Counsel for the State, as the aggrieved person of the matter did not choose to participate in the hearing of these appeals in spite of receiving notices for the same through the learned Additional Standing Counsel for the State(Respondent).

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During the course of hearing of these appeals, the learned counsels for CICLs/appellants submitted that, the above rejection order of bail of the CICLs passed by the learned Additional Sessions Judge-cum-Special Judge(Children‟s Court), Bhawanipatna is not in conformity with law.

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As per the provisions of law envisaged in the proviso to Subsection(1) of Section 12 of the J.J.(C&P) Act, 2015, a CICL can be denied with the privilege of bail, only if, the court of the opinion that,

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(i) there appears reasonable grounds for believing that, the release of CICL on bail shall bring them into association with any known criminal or

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(ii) shall expose them to moral, physical and psychological danger or that his such release would defeat the ends of justice.

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The necessary essentials/criterias indicated above in (i) and (ii) of

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the proviso to Sub-section(1) of Section 12 of J.J.(C&P) Act, 2015 must

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be there in the record to make out any of the above grounds out of two, which may persuade the court not to release the CICL on bail.

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As per the J.J.(C&P) Act, 2015, the nature and gravity of the situations/circumstances, in which, the CIC was involved, has no significance or bearing in the matter of consideration of bail of CICL. So, a CICL has to be released on bail irrespective of the nature and gravity of the situations/circumstances, if the necessary criterias indicated in the proviso to Sub-section(1) of Section 12 of the J.J.(C&P) Act, 2015 for the refusal of the same are not fulfilled.

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The J.J.(C&P) Act, 2015 is a beneficial legislation, which has been enacted / drafted to reform the child. The object of the J.J.(C&P) Act, 2015 is, to achieve the betterment of the child including CICL. It has a reformative approach. If it is found that, the ends of justice would be benefited or the desired goals of the legislation can be achieved by detaining the CICL in a Juvenile Home or place of safety, only in that case, the bail of the CICL can be denied.

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Therefore, as per the mandate of the provisions of Section 12 of the J.J.(C&P) Act, 2015, CICL has to be released on bail, irrespective of the nature of gravity of the matter, because, bail for the CCL is the rule and refusal is an exception. The right of privilege of bail of the CICL can be denied, only on the basis of sufficient materials with clear and valid

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reasons for the same, i.e., enlargement on bail to the CICL shall be detrimental to the interest of the CICL or the refusal of his bail would benefit the ends of justice.

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On this aspect, the propositions of law has already been clarified

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by the Hon‟ble Courts and Apex Court in the ratio of the following decisions :-

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(i) 2020(2) OJR-73(S.C.) : Exploitation of Children in Orphanages in the State of Tamil Nadu vrs. Union of India and others — J.J.(C&P) Act, 2015— Sections 10 & 12—Bail—The only embargo created for bail of the CICL is that, (i) in case the release of the child likely bring into association with known criminals or (ii) expose the child to moral, physical or psychological danger or where the release of the child would defeat the ends of justice.

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(ii) 2016(1) CLT Crl. (Supp.)-Criminal-17 : Pankaj Kumar Malik vrs. State of Odisha — J.J.(C&P) Act, 2015—Sections 12 & 53—Bail—Release on bail of the CICL is a rule, but refusal is an exception, which can only be done in the existence of circumstances detrimental to the interest of the CICL or if the same would defeat the ends of justice—Heinousness and seriousness of an offence has got nothing to do in consideration of the prayer for bail of the CICL.

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(iii) 2016(4) Crime-78(Madras) : Vigneshwaran @ Vignesh Ram vrs. State — J.J.(C&P) Act, 2015— Section 12—Bail—So far as juveniles are concerned, grant of bail is the rule and non-grant of bail is only an exception.(Para-7)

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(iv) 2016(4) Crime-188(Allahabad): Amit Yadav Alias Monu Alias Bebo vrs. State of U.P. and Anr. — J.J.(C&P) Act, 2000—Section 12—Bail—If there are no imminent chances of his repeating the crime, bail to a juvenile should not be ordinarily refused.

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(v) 2009 Cr.L.J. : A Juvenile vrs. State of Orissa 2002(Orissa)

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“A Juvenile needs parental protection and guidance to bring him back to the main-stream of the society from which he has strayed. Thus, his release on bail would aid the ends of justice rather than defeat it.”

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(vi) Suo Motu Writ Petition(Civil) No.04 of 2020(S.C.) The JJBS and Children‟s Court shall consider in taking steps to release all children on bail, unless there are clear and valid reasons for the application of the proviso to Section 12 JJ(C&P) Act, 2015 for the refusal of their bails.

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(vii) 2011(4) Crimes-204(Jharkhand) : Manish Kumar vrs. The State of Jharkhand— J.J.(C&P) Act, 2015— Section 12—Bail— Bail to Juvenile is rule and refusal is an exception. When the case of the CICL does not come within proviso to Section 12, then the CICL is deserved for bail.

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(viii) 2023(1) Crimes-406(Jharkhand) : Shahnawaz Hussain vrs. The State of Jharkhand— J.J.(C&P) Act, 2015— Section 12—Bail— When the CICL has no criminal history and the possibility of the CICL in coming with association of any known criminal is very remote, then the CICL is to be granted on bail.

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(ix) 2024(4) Crimes-264(Uttarakhand) : X vrs. State of Uttarakahand — J.J.(C&P) Act, 2015—Section— 12— All decisions regarding child shall be based on primary consideration that they are in best interest of child and to help child to develop full potential.

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It is the mandate of Section 3 (viii) of The J.J.(C&P) Act, 2015 in administration of that Act that,

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“The Central Government, The State Governments, the Board, and other agencies, as the case may be, while implementing the provisions of this Act, shall be guided by the following fundamental principles, namely:-

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(i)	xx	xx	xx	xx
(ii)	xx	xx	xx	xx
(iii)	xx	xx	xx	xx
(iv)	xx	xx	xx	xx
vi)	xx	xx	xx	xx
(vi)	xx	xx	xx	xx
(vii)	xx	xx	xx	xx

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(viii) Principle of non-stigmatizing semantics-Adversarial or accusatory words are not to be used in the processes pertaining to a child.

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In this appeal at hand, the impugned order passed pertaining to the CICLs(appellants), which is under challenge in this appeal is not free from the use of accusatory words, for which, the said order is not in proper administration of the Act, i.e., The J.J.(C&P) Act, 2015.

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On this aspect, the propositions of law has already been clarified by the Hon‟ble Courts in the ratio of the following decision:-

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2021(2) Crimes 107(Patna) : Sumit Kumar vrs. State of Bihar— Any order relating to a juvenile passed by any court shall have no effect in eyes of law, if the same be passed in non-conformity with provisions of Juvenile Justice Act, 2015.(Para-11)

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When the leaned Additional Sessions Judge-cum-Special

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Judge(Children‟s Court), Bhawanipatna neither has perused nor has referred to any social investigation report for passing an order concerning

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the rejection of bail of the CICLs, then, at this juncture, it is held that, the reasons assigned by the learned leaned Additional Sessions Judge-cum-

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Special Judge(Children‟s Court), Bhawanipatna in J.C.T. Case No.61 of 2023, for the refusal of bail of the CICLs on presumptions, surmises/inferences and guess works without referring any social investigation report cannot be sustainable under law. Because, the prayer for bail of the CICLs cannot be considered dehors(without) social investigation report.

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Therefore, passing of the impugned order, i.e., refusal of bail of the CICLs(appellants) by the learned Additional Sessions Judge-cum-Special Judge(Children‟s Court), Bhawanipatna without referring any social investigation report, has rendered such order illegal automatically.

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On this aspect, the propositions of law has already been clarified in the ratio of the following decision:-

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(i) CRR 53 of 2021(O&M) (P&H) : Vishvas vrs. State of Punjab (dated on 08.02.2021) Para-16—J.J. (C&P) Act, 2015—Section 12—Bail— An application under Section 12 of the Act for bail of the CICL cannot be decided without taking into consideration to the social investigation report submitted by the probation officer.

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On analysis of the matter as per the decisions and observations

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made above, it is held that, the impugned order, i.e., an order for refusal of bail of the CICLs/appellants passed on 03.05.2024 by the learned

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Additional Sessions Judge-cum-Special Judge(Children‟s Court), Bhawanipatna in J.C.T. Case No.61 of 2023 cannot be sustainable under law for the following reasons:-

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(i) the impugned orders have been passed using accusatory words pertaining to CICLs in contravention with Section 3(viii) of The J.J.(C&P) Act, 2015.

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(ii) absence of any material in the record to show that, the CICLs were subjected to any form of abuse or they were the victims of any similar situation earlier or were mixed with any bad associate earlier.

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(iii) absence of any material that, there appears reasonable grounds for believing that, the release of the CICLs on bail shall bring them into association with any known criminal or expose them to moral, physical or psychological danger or their release would defeat the ends of justice.

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(iv) absence of any material to show about any imminent chance in repeating the similar circumstance by the CICLs.

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(v) absence of any material to show about any possibility or chance of fleeing away from the process of justice, in case of release of the CICLs on bail.

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(vi) passing of the impugned order in contravention with law without any social investigation report and absence of any material in the record to show that, the respective father-guardians of the CICLs has any bad record, rather the respective father-guardians of the CICLs have sworn affidavits that, they will take proper care of the CICLs being their natural father guardians after release of the CICLs on bail.

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So, there is justification under law, for making interference with

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the impugned order through this appeal filed by the CICLs(appellants).

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As such, there is merit in this appeal of the appellants (CICLs). The same must succeed.

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In result, both the appeals filed by the CICLs (appellants) are allowed on merit.

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The impugned order dated 03.05.2024 passed in J.C.T. Case No.61

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of 2023 by the learned Additional Sessions Judge-cum-Special Judge(Children‟s Court), Bhawanipatna is set aside.

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The prayer for bail of the CICLs (appellants) is allowed.

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The learned Additional Sessions Judge-cum-Special Judge(Children‟s Court), Bhawanipatna is directed to release the CICLs (appellants) on bail with required bail bond/ bonds imposing lawful conditions as it deems fit and proper with a compulsory condition that:-

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the father-guardians of the respective CICLs shall furnish separate an undertakings that, they will not allow the respective CICLs to come in contact with their any bad associate and the CICLs shall not indulge with any unlawful/illegal activities.

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Accordingly, both the criminal appeals filed by the

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appellants(CICLs) are disposed of finally.

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Registry is directed to transmit the copy of this order to the learned Additional Sessions Judge-cum-Special Judge(Children‟s Court), Bhawanipatna in reference to J.C.T. Case No.61 of 2023 forthwith for information and lawful compliances on the basis of this order.

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( A.C. Behera )

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Judge

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Signature Not Verified

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Orissa High Court, Cuttack

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Digitally Signed Signed by: JAGABANDHU BEHERA The 13^th of December, 2024/ Jagabandhu, P.A. Designation: Personal Assistant Reason: Authentication Location: OHC, CUTTACK Date: 13-Dec-2024 18:27:48

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Brusaba Dhangdamajhi v. State of Odisha

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Brusaba Dhangdamajhi v. State of Odisha

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