Sombir Alias Chand Alias David Alias Govind v. State of Haryana

ANOOP CHITKARA, J. FIR No. Dated Police Station Sections 265 23.06.2020 Kharkhoda, Sonipat 302, 34 IPC (Sec!on 201 IPC added lateron) and 25 Arms Act

¶1The pe!!oner, incarcerated in the FIR cap!oned above and aggrieved by the dismissal of regular bails by the trial and appellate courts, came before this Court under Sec!on 102 of Juvenile Jus!ce (Care and Protec!on of Children) Act, 2015.

¶2As per paragraph 4 of the grounds of appeal, the accused-pe!!oner is a minor child.

¶3The facts and allega!ons are being taken from the status report dated

18.11.2024 filed by the State, which reads as follows:- "2. That briefly sta-ng the facts involved in the instant case are that on

23.06.2020, ac-ng upon an informa-on that dead body of an unknown person is lying in the fields in the area of village Barona, District Sonipat, police officials rushed to the spot, where dead body of a person smeared with blood was found lying and blood had oozed out of the chest and face of the deceased in huge quan-ty and inspec-on of the dead body revealed that deceased had been murdered by firearm injury. Efforts were made for ascertaining the iden-ty of the deceased person at the spot, but his iden-ty could not be known. Therea,er, family member of Sarpanch of the village Barona, District Sonipat, namely Bijender son of Ved Singh presented a complaint, sta-ng therein that he is resident of village Barona order/judgment. 1 and wife of his younger brother namely Smt. Seema is the Sarpanch of village. On 23.06.2020, at about 06:00 O'clock, his co-villager namely Narshi son of Shri Hari Om informed him on his mobile phone No.97297xxxxx from his mobile phone No. 99920xxxxx that dead body of a youngster smeared with blood was lying in the field of Jagbir son of Suraj Bhan, upon which he telephonically informed SHO, Police Sta-on Kharkhoda and reached the spot with other co-villagers, where dead body was found lying, which could not be iden-fied and it appears that someone has murdered the deceased. He further stated that face of the dead body cannot be iden-fied, as due to firearm injury blood has oozed out and has gathered at the face of deceased. He further stated that only sky colour underwear is on the dead body and there is no other cloth on the dead body and it seems that someone has murdered deceased due to enmity. With these allega-ons, the complainant sought for legal ac-on against the culprits. On receipt of above informa-on, instant FIR was registered and inves-ga-on was set into mo-on."

¶4The pe!!oner's counsel prays for bail by imposing any stringent condi!ons and contends that further pre-trial incarcera!on would cause an irreversible injus!ce to the pe!!oner and his family.

¶5The State's counsel opposes bail and refers to the status report.

¶6It would be appropriate to refer to the following por!ons of the status report, which read as follows: "11. That there are direct and specific allega-ons and sufficient evidence against pe--oner to connect him with the commission of above men-oned offence. He is specifically named in the statement of father of deceased. Pe--oner had ac-vely par-cipated in the above men-oned crime. Firstly, he alongwith co-accused hatched the conspiracy for commi@ng the murder of Sushil @ Shila and therea,er, accused persons boarded deceased on motorcycle and took him to the fields, where he was shot dead by pe--oner Sombir @ Chand by firing gunshots at him and when deceased Sushil @ Shila tried to run away, pe--oner Sombir followed him and a,er covering a distance of about 1½ acre, Sushil @ Shila fell down and when Sushil was lying on the ground, pe--oner Sombir again fired shots in his chest. Therea,er, pe--oner Sombir with co-accused Amit took the clothes of deceased and fled away from the spot on order/judgment. 2 a Scooty. Alter use, the pistol used by pe--oner in commi@ng the crime was returned to co-accused Rupender Nanha and the Scooty used at the -me of occurrence was also got recovered by him in another case at Gurugram. Pe--oner had ac-vely par-cipated in the commission of above men-oned offence, which has also been admiFed by him in his disclosure statement, pursuant to which, he also got demarcated the place of occurrence. The case qua pe--oner is pending for arguments on charge and if enlarged on bail, pe--oner can tamper with prosecu-on evidence and can also hamper the trial by absconding from the process of law. Merely on the basis of longevity of incarcera-on, pe--oner is not en-tled to seek the concession of bail as a maFer of right. Pe--oner has ac-vely par-cipated in the commission of above men-oned offence. Thus, keeping in view the seriousness of offence, facts and circumstances of the case, role of pe--oner in commi@ng the crime and punishment provided, he is not en-tled to the relief of bail as claimed for."

¶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 commiCed 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 commiCed 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. order/judgment. 3

(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.

(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 commiCed 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 commiCed 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. Explana-on.—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 maCer 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 maCer 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 commiCed a peCy offence, or a serious offence, or a child below the age of sixteen years has commiCed a heinous offence, 1[or a child above the age of sixteen years has commiCed a heinous offence and the Board has, aOer preliminary assessment under Sec!on 15, disposed of the maCer] 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 aOer 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; JYOTI order/judgment. 4

(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, 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) aCend school; or

(ii) aCend a voca!onal training centre; or

(iii) aCend 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 aOer 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.

¶8The relevant por!on of the social inves!ga!on report is men!oned in the bail order passed by the Principal Magistrate, Juvenile Jus!ce Board, Sonipat, which reads as follows:- "6 xxxxx Preliminary Assessment of the applicant/CCL was conducted as envisaged under Sec-on 15 of the Juvenile Jus-ce (Care and Protec-on) Act, 2015 and vide order dated 28.02.2024 passed by this Board, it was held that there is a need for trial of the said CCL as an adult and hence, as per provision of Sec-on 18(3) of the J.J. Act, the trial of the case was transferred to Learned Children's Court and at present, the case/trial is pending in the Court of Shri Ajay Prashar, Learned Addi-onal Sessions Judge, Sonipat."

¶9Given the social inves!ga!on report, there is no reason to deny the bail to the order/judgment. 5

¶10The pe!!oner is a first offender, apart from being a minor; thus, one of the relevant factors would be to provide an opportunity to course correct. Even a primafacie perusal of paragraph 6 of the appeal needs considera!on for bail. Given the above, the Juvenile pe!!oner-in conflict with the law is ordered to be released on bail on furnishing bonds by the father of the pe!!oner with an undertaking to produce him on each and every date to the sa!sfac!on of trial/Illaqa/Duty Magistrate.

¶11Any observa!on made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments.

¶12There 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 aCest it to be a true copy. If the aCes!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 aCes!ng bonds. Petition allowed. All pending applica!ons, if any, stand disposed of. (ANOOP CHITKARA) JUDGE

19.12.2024 Jyo!-II order/judgment. 6

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Reserved on: 04.12.2024 Pronounced on: 19.12.2024 Sombir @ Chand @ David @ Govind minor through his mother ...Pe!!oner Versus State of Haryana …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. Rakesh Kumar Lathwal, Advocate for the pe!!oner. Mr. Aashish Bishnoi, D.A.G., Haryana. ****