Krish Alias Panipatiya v. State of Haryana

ANOOP CHITKARA, J. FIR No. Dated Police Station Sections

02.10.2022 Samalkha, Panipat 148, 149, 302, 506, 34, 120-B IPC and 25/54/59 of Arms Act

¶1The present appeal/pe

on have been filed against the order of Judicial Magistrate, whereby their bail applica on stand dismissed and the said order affirmed vide order dated 05.08.2024 by the Addi onal Sessions Judge, Panipat, the appellant/pe

oner have come up before this Court in appeal/revision.

¶2In paragraph 13 of the appeal/pe

on, the accused declare that they have no criminal antecedents.

¶3Since, both the ma>ers are related to same FIR and role of both the appellant/pe

oner is same so for brevity, the facts and allega order/judgment. the reply filed by the State in CRA-S-2996-2024, which reads as follows: "2.(i) That on 02.10.2022, ruqa was received from Government Hospital, Samalkha that Manoj S/o Ajit has been brought dead in the Hospital. On receiving ruqa, police party reached at Government Hospital, Samalkha where Bijender S/o Deep Chand (uncle of deceased) presented a wri-en complaint. The contents of the complaint are as follows:- "To, S.H.O, P.S. Samalkha. Respected Sir, 1, Bijender S/o Deep Chand and I am resident of Kuhar Pana, Samalkha. I am an agriculturist. On 01.10.2022 in the a5ernoon my nephew, Manoj S/o Ajit R/o Kuhar Pana told me that on 30.09.2022, during 'Ramlila', Himanshu S/o Rakesh, Sahil and Rustam etc. abused me and that on

01.10.2022 me and my nephew Sagar s/o Karambir, both of us a5er watching 'Ramlila' were going to our house through Bhadbhuja Gali. A5er going a long distance in the Gali at about 10:30 P.M, some persons were bea9ng my nephew Manoj S/o Ajit. When I and Sagar raised our voices, Himanshu @ Ishu s/o Rakesh stabbed Manoj on his sides and waist with a knife which was in his hand, then Sahil s/o Randhir stabbed Manoj with a knife on his waist, then Romi struck Manoj on his hands with knife and then Rustam @Chota struck Manoj with a Ice Pick (Sua) and even others beat Manoj. That Sagar and I tried to catch them but everyone flew with their weapons who threatened that whoever comes in between will be murdered. Sagar and I took Manoj on motorcycle and admi-ed him in the Govt. Hospital Samalkha where Doctor declared Manoj as brought dead. Himanshu@ Ishu, Sahil s/o Randhir, Romi grandson of Randhir, Rustam @ Chota (s/o maternal uncle of Ishu) and some other residents of Balmiki Bas9, Samalkha have murdered Manoj and that strict ac9on should be taken, against them." On the basis of said complaint and nature of crime, a formal FIR No. 843 dated

02.10.2022 under sec9ons 302, 148, 149 and 506 of IPC (Sec9on 120-B of IPC and Sec9on 25 of Arms Act were added later on), was registered at P.S Samalkha, District Panipat."

¶4The appellant/pe!!oner's counsel prays for bail further separa!on from parents and deten!on in protec!ve care would cause an irreversible injus!ce to the appellant/pe!!oner and their family.

¶5The State's counsel opposes bail and refers to the reply. order/judgment. 2

¶6It would be appropriate to refer to the following por!ons of the reply filed in CRA-S-2996-2024, which read as follows: "2. (v) That the following accused were found involved in crime and were arrested by the inves9ga9ng officer during the inves9ga9on: - Sr. Name Date of Name come Role in the crime Recovery No. accused Arrest in this case

¶3Romi @ 05.10.2022 He is named He gave bea!ngs to the NIL Gunga S/o in the FIR deceased in conspiracy Sunder Ram with other accused.

¶4Krish 05.10.2022 He was He stabbed knife in the Knife Panipa!ya named in the chest of the deceased S/o statement due to which deceased Dharambir dated died on the spot. Singh 04.10.2023 (Pe!!oner) of the complainant.

¶7It shall be appropriate to refer to the following provisions of the Juvenile Jus!ce (Care and Protec!on Of Children) Act, 2015: S. 2(35) "juvenile" means a child below the age of eighteen years; S. 2(12) "child" means a person who has not completed eighteen years of age; S.2(13) "child in conflict with law" means a child who is alleged or found to have commi>ed an offence and who has not completed eighteen years of age on the date of commission of such offence; S. 2(33) "heinous offences" includes the offences for which the minimum punishment under the Indian Penal Code (45 of 1860) or any other law for the !me being in force is imprisonment for seven years or more; S. 12. Bail to a person who is apparently a child alleged to be in conflict with law.—(1) When any person, who is apparently a child and is alleged to have commi>ed a bailable or non-bailable offence, is apprehended or detained by the police or appears or 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 !me being in force, be released on bail with or without surety or placed under the supervision of a proba!on officer or under the care of any fit person: Provided that such person shall not be so released if there appears reasonable grounds for believing that the release is likely to bring that person into associa!on with any known criminal or expose the said person to moral, physical or psychological danger or the person's release would defeat the ends of jus!ce, and the Board shall record the reasons for denying the bail and circumstances that led to such a decision.

(2) When such person having been apprehended is not released on bail under sub-sec!on (1) by the officer-in-charge of the police sta!on, such officer shall cause the person to be kept only in an observa!on home 1[or a place of safety, as the case may be] in such manner as may be prescribed un!l the person can be brought before a Board. order/judgment. 3

(3) When such person is not released on bail under sub-sec!on (1) by the Board, it shall make an order sending him to an observa!on home or a place of safety, as the case may be, for such period during the pendency of the inquiry regarding the person, as may be specified in the order.

(4) When a child in conflict with law is unable to fulfil the condi!ons of bail order within seven days of the bail order, such child shall be produced before the Board for modifica!on of the condi!ons of bail. S. 15. Preliminary assessment into heinous offences by Board.—(1) In case of a heinous offence alleged to have been commi>ed by a child, who has completed or is above the age of sixteen years, the Board shall conduct a preliminary assessment with regard to his mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he allegedly commi>ed the offence, and may pass an order in accordance with the provisions of sub-sec!on (3) of sec!on 18: Provided that for such an assessment, the Board may take the assistance of experienced psychologists or psycho-social workers or other experts. Explana9on.—For the purposes of this sec!on, it is clarified that preliminary assessment is not a trial, but is to assess the capacity of such child to commit and understand the consequences of the alleged offence.

(2) Where the Board is sa!sfied on preliminary assessment that the ma>er should be disposed of by the Board, then the Board shall follow the procedure, as far as may be, for trial in summons case under the Code of Criminal Procedure, 1973 (2 of 1974): Provided that the order of the Board to dispose of the ma>er shall be appealable under sub-sec!on (2) of sec!on 101: Provided further that the assessment under this sec!on shall be completed within the period specified in sec!on 14. S. 18. Orders regarding child found to be in conflict with law.—(1) Where a Board is sa!sfied on inquiry that a child irrespec!ve of age has commi>ed a pe>y offence, or a serious offence, or a child below the age of sixteen years has commi>ed a heinous offence, 1[or a child above the age of sixteen years has commi>ed a heinous offence and the Board has, aPer preliminary assessment under Sec!on 15, disposed of the ma>er] then, notwithstanding anything contrary contained in any other law for the !me being in force, and based on the nature of offence, specific need for supervision or interven!on, circumstances as brought out in the social inves!ga!on report and past conduct of the child, the Board may, if it so thinks fit,—

(a) allow the child to go home aPer advice or admoni!on by following appropriate inquiry and counselling to such child and to his parents or the guardian;

(b) direct the child to par!cipate in group counselling and similar ac!vi!es;

(c) order the child to perform community service under the supervision of an organisa!on or ins!tu!on, or a specified person, persons or group of persons iden!fied by the Board;

(d) order the child or parents or the guardian of the child to pay fine: Provided that, in case the child is working, it may be ensured that the provisions of any labour law for the !me being in force are not violated;

(e) direct the child to be released on proba!on of good conduct and placed under the care of any parent, guardian or fit person, on such parent, guardian or fit person execu!ng a bond, with or without surety, order/judgment. 4 as the Board may require, for the good behaviour and child's well-being for any period not exceeding three years;

(f) direct the child to be released on proba!on of good conduct and placed under the care and supervision of any fit facility for ensuring the good behaviour and child's well-being for any period not exceeding three years;

(g) direct the child to be sent to a special home, for such period, not exceeding three years, as it thinks fit, for providing reforma!ve services including educa!on, skill development, counselling, behaviour modifica!on therapy, and psychiatric support during the period of stay in the special home: Provided that if the conduct and behaviour of the child has been such that, it would not be in the child's interest, or in the interest of other children housed in a special home, the Board may send such child to the place of safety.

(2) If an order is passed under clauses (a) to (g) of sub-sec!on (1), the Board may, in addi!on pass orders to—

(i) a>end school; or

(ii) a>end a voca!onal training centre; or

(iii) a>end a therapeu!c centre; or

(iv) prohibit the child from visi!ng, frequen!ng or appearing at a specified place; or

(v) undergo a de-addic!on programme.

(3) Where the Board aPer preliminary assessment under sec!on 15 pass an order that there is a need for trial of the said child as an adult, then the Board may order transfer of the trial of the case to the Children's Court having jurisdic!on to try such offences.

¶8It shall be appropriate to refer to the order of JMFC dated 27-02-2023, reads as follows: "xxxx Similarly, applicant Krish examined AW2 Anju who proved original birth cer9ficate showing his date of birth 14.09.2006 which is further confirmed by Inves9ga9ng Officer vide report dated 30.11.2022. It is categoric version of prosecu9on that alleged occurrence was commi-ed on 01.10.2022. However, applicants have submi-ed that they were juvenile on 01.10.2022, when alleged offence was commi-ed. The prosecu9on has filed reports (supra) to the effect that actual date of birth of applicants was less than 18 years of age on the alleged date of occurrence. Hence, they fall in the defini9on of a juvenile in conflict with law, under Sec9on 2 (I) of the Juvnile Jus9ce (Care and Protec9on of Children) Act, 2000. Sequally, applicant Romi, Aaditya and Krish are hereby declared juvenile on the date of occurrence. Accordingly, they are directed to appear before learned Juvenile Jus9ce Board, Panipat on

28.02.2023."

¶9As per Sec!on 12 of the Juvenile Jus!ce Act, 2015, when any person who is order/judgment. 5 apparently a child and is alleged to have commi>ed a bailable or non-bailable offense is apprehended or detained by the police or appears or brought before a Board, such person shall, notwithstanding anything contained in the CrPC, 1973/ BNSS, 2023 or in any other law for the !me being in force, be released on bail with or without surety or placed under the supervision of a proba!on officer or the care of any fit person. However, as per the proviso, such a person shall not be released if there appear to be reasonable grounds for believing that the release is likely to bring that person into associa!on with any known criminal or expose the said person to moral, physical, or psychological danger or the person's release would defeat the ends of jus!ce, and the Board shall record the reasons for denying the bail and circumstances that led to such a decision. Given this, the following aspects have to be considered by the Juvenile board: 1) The release will likely bring the child into associa!on with any known criminal. 2) Expose the child to moral, physical, or psychological danger. 3) The child's release would defeat the ends of jus!ce.

¶10While rejec!ng the bail, Ld. Addi!onal Sessions Court relied upon the Social Inves!ga!on Report in the following terms: "It has been contended on behalf of the State that if the applicant is released on bail, he is likely to commit any such similar offence in future. In the Social Inves9ga9on Report of the applicant, the living condi9on has been men9oned as poor. Further, the reason for alleged offense has been men9oned as 'parent's nega9ve influence'. As such, it is clear that the applicant has been subjected to parental neglect and nega9ve influence from them, the family of the applicant has failed to provide him good educa9on. The majority friends of the applicant has been men9oned in ththe report as 'illiterate'. The applicant has studied up to 5 standard. In these circumstances, the interest of the applicant will be be-er served if the applicant is kept in protec9ve custody. Moreover, if the applicant is released on bail, he may suffer some injury/social trauma. As such the protec9ve custody of the applicant is the interest and welfare of the applicant, which will at least give a good atmosphere to teach him for himself to become good ci9zen, and further it will also help him to improve his overall being."

¶11Given the above, the reasons are not in terms of the statutory requirement of Sec!on 12 of the JJ Act.

¶12Undoubtedly, the most grievous injury has been a>ributed to the order/judgment. 6 appellant/pe

oner, but they were under sixteen years of age at the me of the occurrence. Thus, he could have been separated from his lawful guardians only aPer mee ng the statutory condi ons of the JJ Act, which was primafacie not done.

¶13Resultantly, the appellant/pe

oner's custody be handed over to his parents subject to the condi on that they shall be responsible for the appellant/pe

oner's good behavior and shall ensure that the appellant/pe

oner, who is a child in conflict with the law, does not repeat any offense. The appellant/pe

oner will be released aPer his parents furnish a bond in these terms.

¶14Consequently, the impugned order dated 05.08.2024 is set aside.

¶15Any observa on made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments.

¶16There would be no need for a cer fied copy of this order for furnishing bonds, and any Advocate for the Pe

oner can download this order along with case status from the official web page of this Court and a>est it to be a true copy. If the a>es ng officer wants to verify the authen city, such an officer can also verify its authen city and may download and use the downloaded copy for a>es ng bonds. Appeal/petition are allowed in aforesaid terms. All pending applica ons, if any, stand disposed of. (ANOOP CHITKARA) JUDGE

20.11.2024 Jyo -II order/judgment.

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRA-S-2996-2024 Reserved on: 07.11.2024 Pronounced on: 20.11.2024 Krish @ Panipa ya ...Pe oner Versus State of Haryana …Respondent CRR-1717-2024 Romi @ Gunga ...Pe oner Versus State of Haryana …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. Ajay Ghangas, Advocate, for the appellant in CRA-S-2996-2024. Mr. N.K. Chhokar, Advocate, for the pe oner in CRR-1717-2024. Mr. Aashish Bishnoi, DAG, Haryana. ****