Vishavjeet v. State of Uttarakhand another

No.1388/2021, in FIR No.166 of 2020, under Sections 302, 120-B & 34 IPC and 3/25 of the Arms Act, 1959, Police Station Transit Camp, District Udham Singh Nagar, of the appellant has been rejected.

2. Heard learned counsel for the parties and perused the file.

3. According to the FIR, in the midnight of

19.06.2020, at about 2:30 a.m., some persons entered into a house and fired at Sameer. Having heard the noise, when the family members came from the room, they saw three persons running from there. The FIR records that the 2 wife of the deceased had extramarital relationship with the appellant, who threatened the deceased to life or required him to divorce his wife so that the appellant could marry her. The charge-sheet was submitted against the appellant as an adult, but by the order dated 21.10.2020 passed in Misc. Application No.115 of 2020, State vs. Vishvajeet Rai, the court of Additional Judicial Magistrate/2nd Additional Civil Judge (Senior Division), Rudrapur, District Udham Singh Nagar, declared the appellant as Child in Conflict with Law (“the CIL”) and the matter was referred to the JJ Board. A statement is given that after preliminary assessment under Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (“the Act”). It has been directed that the appellant shall be tried as an adult. It is, thereafter, the trial proceeded in the Children Courts/FTC/Additional Sessions Judge/Special Judge (POCSO), Udham Singh Nagar, in which, by the impugned order, the bail application of the appellant has been rejected.

4. Learned counsel for the appellant would submit that in the instant case, the provisions of Section 12 of the Act, has not been considered. The appellant is not named in the FIR. The appellant has been falsely implicated.

5. Learned State Counsel would submit that the social background report of the appellant is satisfactory; as 3 per the report from Special Home, Haridwar, the appellant is improving and he needs supervision.

6. Learned counsel for the informant would submit that in the year 2019, the FIR under Section 60 of the U.P. Excise Act was lodged against the appellant. Therefore, his conduct may not be termed as satisfactory. He is the prime accused in the instant case. The recovery was made from him.

7. It is admitted that the bail application of the appellant has to be considered, in view of Section 12 of the Act.

8. On being asked, learned counsel for the appellant would submit that the father of the appellant seeks his custody. He is a labourer. The appellant is also a labourer. They are poor.

9. For a child in conflict with law (CIL), every offence is bailable despite the offence being classified as bailable or non bailable. A child in conflict with law is entitled to be released on bail in view of Section 12 of the Act. Subject to the certain rider as given in the proviso to the Section 12 of the Act. A CIL may not be released on bail, if there appears reasonable grounds for believing that the release is likely to bring him into association with any known criminal or 4 expose him to moral, physical or psychological danger or his release would defeat the ends of justice.

10. The provisions of the Act are child centric and the best interest of the child is to be ensured. Section 3 of the Act incorporates the general principles that are to be followed in the administration of the Act. In fact, Section 3 sub section (iv) and (v) are important on this aspect, which are as follows:- “(iv) Principle of best interest: All decisions regarding the child shall be based on the primary consideration that they are in the best interest of the child and to help the child to develop full potential. (v) Principle of family responsibility: The primary responsibility of care, nurture and protection of the child shall be that of the biological family or adoptive or foster parents, as the case may be.”

11. What is stated is that the appellant is the poor person. He and his father, both are labourers. Having a case in the past, per se may not fall the case under the proviso of Section 12 of the Act.

12. Learned State Counsel would submit that the social background report is prepared based on the 5 information given by family members and neighbours of the appellant.

13. Having considered the entirety of facts, this Court is of the view that the case of the appellant does not fall in the proviso to Section 12 of the Act. The best interest of the appellant would be served, if he is given to the custody of his father.

14. Having considered, the entirety of facts, this Court is of the view that in this case, there is no impediment in grant of bail to the CIL. Accordingly, the appeal deserves to be allowed.

15. The appeal is allowed. The judgment and orders are set aside.

16. The CIL be given into the custody of his father subject to production of two reliable sureties. The father of the CIL shall also give an undertaking that he shall take care of the CIL and shall not allow him to contact any of the witnesses or their family members. The father of the CIL shall also undertake that he shall also not contact either the witnesses or any of their family members. (Ravindra Maithani, J.)

08.01.2025 Ravi