425 001, Maharashtra v. The State of Maharashtra Through, The Police Inspector/ Investigating Ofcer in Crime No.59/2020 Shanipeth
Case Details
{1} BA 1082 OF 2021 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD 916 BAIL APPLICATION NO.1082 OF 2021 . 1. Tejas S/o. Deelip Sonawane (Arrested on 20-08-2020) (At present lodged in jail) Age: 19 years (Date of Birth – 2001), Occu.: Student, Resident of S/o. Deelip Sonawane, Plot No.76, Parvatabai Oak Nagar, Kanchan Nagar, Jalgaon, Tal.Jalgaon, Dist.Jalgaon, Pin.: 425 001, Maharashtra ..Applicant (Original Accused No.1) VERSUS The State of Maharashtra Through, The Police Inspector/ Investigating Ofcer in Crime No.59/2020 Shanipeth Police Station, Tal.Jalgaon, Dist.Jalgaon. 2. XYZ ..Respondents
Legal Reasoning
“3. On a prima facie satisfaction, the appellant appears to have been a juvenile on the date of the ofence and his case is covered under Section 7-A of the Juvenile Justice (Care and Protection of Children) Act, 2000. 4. We, therefore, direct that the appellant be released on bail to the satisfaction of the trial Court, subject to further enquiry regarding his age on the date of the ofence and if the trial Court is subsequently satisfed that the appellant is a juvenile, appropriate orders may be passed in the matter as far as he is concerned to refer his case to the Juvenile Justice Board.” 9. Since prima-facie it appears that applicant is guilty of heinous ofence, enquiry will have to be conducted under Section 15 of JJCA by the Juvenile Justice Board. In this view of the matter, Juvenile Justice Board is directed to conduct eqnuiry as regard the juvenility of the applicant and if he is found to be a juvenile, to conduct enquiry under Section 15 of the JJCA. {6} BA 1082 OF 2021 10. In view of these observations, applicant is entitled to be released on bail. Applicant, therefore, be released on bail on his executing P.R.Bond of Rs.15,000/- (Rs.Fifteen thousand only) with one solvent surety in the like amount in connection with Crime No.59 of 2020, registered with Shanipeth Police Station, Dist.Jalgaon, under Sections 376, 354, 506, 34 of the Indian Penal Code and under Sections 4, 6, and 8 of the POCSO Act. 11.
Arguments
... Advocate for Applicant :Shri Abhaykumar D. Ostwal PP for Respondent No.1 : Shri D.R.Kale Advocate for Respondent No.2 : Shri Z.H.Farooqui (Amicus Curiae) … CORAM : M.G.SEWLIKAR, J. DATE: 14th January, 2022 PER COURT :- 1. By this application, applicant is seeking his enlargement on bail in connection with Crime No.59 of 2020, registered with Shanipeth Police Station, Dist.Jalgaon, under Sections 376, 354, {2} BA 1082 OF 2021 506, 34 of the Indian Penal Code and under Sections 4, 6 and 8 of the Protection of Children from Sexual Ofences (POCSO) Act. 2. Facts in brief are that the victim aged 16 years and 5 months lodged the FIR alleging therein that the applicant is the neighbour of the victim. The applicant, victim and another accused Chetan Sonar had been to Kolhe Hills on two Motorcycles. It is further alleged in the FIR that applicant had committed penetrative sexual assault on the the victim. This indicates that the alleged penetrative sexual assault was committed either on 28th February, 2019 or prior to that date. 3. It is further alleged in the FIR that in the month of February, 2020, another accused Chetan Sonar had taken the victim to Kolhe Hills. At that time, Chetan showed the photographs of the applicant and the victim in compromising position and by practicing coercion had committed penetrative sexual assault on the victim. Applicant and accused Chetan started making indecent gestures at her and they were threatening her to make the indecent photographs viral. They were coercing her to have physical relations with them. On these allegations, she lodged the FIR under the aforesaid Sections on 13th August, 2020. {3} BA 1082 OF 2021 4. I have heard Shri A.D.Ostwal, learned counsel for the applicant, Shri D.R.Kale, learned Public Prosecutor for respondent No.1-State and Shri Z.H.Farooqui, learned counsel for informant - respondent No.2. 5. Shri Ostwal, learned counsel for the applicant submits that juvenility is to be determined with reference to the date of commission of the ofence and not the date on which he was arrested. He submits that on the date of ofence applicant was minor. Therefore, he should be treated as juvenile and should be dealt with under the Juvenile Justice (Care and Protection of Children) Act (hereinafter referred to as “the JJCA”). He further submits that in terms of Section 12 of JJCA, he has to be released on bail. He contended that applicant is accused of committing ofence under Section 376 of the Indian Penal Code and under Sections 4, 6 and 8 of the POCSO Act. If ofence committed by him is categorized as ‘heinous ofencee in that case, he will have to be dealt with in accordance with provisions of Section 15 of the JJCA. He submits that any how applicant cannot be kept behind bars once he is found to be juvenile. His date of birth is 21st September, 2001. 6. Shri Kale, learned Public Prosecutor for respondent No.1 and Shri Farooqui, learned counsel for respondent No.2 do not {4} BA 1082 OF 2021 dispute this position. 7. In terms of Section 2(12) of JJCA ‘childe means a person who has not completed eighteen years of age. In terms of Section 2(13) of JJCA ‘child in confict with lawe means a child who is alleged to have committed an ofence and has not completed eighteen years of age on the date of commission of such ofence. As per Section 2(33) of JJCA ‘heinous ofencee is defned which means the ofence for which the minimum punishment under the Indian Penal Code or any other law for the time being in force is imprisonment for seven years or more. In terms of Section 9 of JJCA, the issue of juvenility can be raised before any Court at any stage, even after fnal disposal of the case and the Court is obligated to decide this issue. 8. In the case at hand, admittedly, the date of birth of the applicant, as per birth certifcate, is 21st September, 2001. The date of ofence under Section 376 of the Indian Penal Code and under Sections 4, 6 and 8 of the POCSO Act i.e. penetrative sexual assault on the victim is 28th February, 2019. This means that the date of reckoning is the date of ofence i.e. 28th February, 2019. Therefore, at the time of commission of ofence i.e. on 28th February 2019, age of the applicant was 17 years 5 months and 10 days. Thus, prima-facie, it appears that the {5} BA 1082 OF 2021 applicant was juvenile at the time of the incident. In such a case, what course is to be followed has been explained in the case of Abdul Rab Alias Laddu Vs. State of Bihar [(2008) 17 Supreme Court Cases 475] . In this case also at the stage of bail, the accused was found to be juvenile. The Honeble Supreme Court observed thus:
Decision
Bail Application is disposed of. 12. Fees of Amicus Curiae is quantifed at Rs.7,000/-. It is to be paid through the High Court Legal Services Authority, Sub- Committee, Aurangabad. 13. It is clarifed that the observations made in the above order are restricted to the decision of this application only and the trial Court shall not get infuenced by the same and can come to its independent conclusion during trial. SPT ( M.G.SEWLIKAR ) JUDGE