1. The petitioner is an accused in J.G.R Case No. 27 of 2008 pending in the Court of learned Chief Judicial Magistrate-cum-Principal Magistrate, Juvenile Justice Board, Khurda involving offence under Sections 457/302/380 of the I.P.C in which charge sheet has been submitted under Sections 457/380/302/120-B of the I.P.C He has sought for bail under Section 439 of the Code of Criminal Procedure, 1973 (hereinafter called “the Cr. P. C”)
2. I have heard learned counsel for both sides on the question of bail and have perused the records. Admittedly the petitioner is a juvenile. The prosecution allegation is that one Krushna Chandra Sahu, a retired employee aged about 62 years used to live in his house at Krishna Garden, Bhubaneswar. He had developed homosexual relation with the petitioner. Sometimes later the petitioner resented the same especially when be began to show overt sexual gestures at him even in public places. In the meanwhile the petitioner had developed friendship with one Manwar Khan in whom he confided. On the advice of Manwar he went with him to Salipur and contacted one Mitu alias Susanta Kumar Routray a known criminal. Susanta took money from the petitioner and paying some amount to Manwar and another hired killer sent them to Bhubneswar. At Bhubaneswar pursuant to plan the petitioner telephoned the deceased and accompanied him in his motorcycle to his house. At about 1.30 a.m Manwar and the another hired killer entered into the house of the deceased where they along with the present petitioner committed murder of the deceased by means of sharp cutting weapons. On discovery of the dead body F.I.R was lodged and investigation was taken up. During the course of investigation calls made from stolen mobile phones were traced to Manwar. The police also traced out the present petitioner through Manwar. The petitioner was never apprehended by the police but had sought for anticipatory bail and was allowed to surrender in the Court of learned S.D.J.M, by order if this Court. It was directed that of his bail petition is rejected then he may approach the Sessions Judge on the same day, who shall dispose of the bail petition during the course of the day. The bail petition of the petitioner was rejected by both the fora occasioning the present petition.
3. Bail is prayed for on the ground that no prima facie case is made out against the petitioner since the only material against him is the confession of the co-accused which is not admissible in law. It has further been submitted that the petitioner being a juvenile and there being no reasonable ground for believing that his release is likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice, he should be granted bail. Learned Addl. Government Advocate has submitted on the other hand that the bail application under Section 439 of the Code is not maintainable and that against the decision of the Magistrate rejecting the bail application, appeal should have been preferred before the Sessions Judge and thereafter a petition under Section 482 of the Code should have been filed before this Court. He has further argued that this is a heinous offence and release of the petitioner is likely to bring him into association with known criminals and that his release would defeat the ends of justice.
4. As soon as claim of juvenility was made before any Court it should have according to the provisions of Section 7-A of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter called “the Act”) determined the age of the juvenile and should have forwarded him to the Board for passing appropriate order. If the petition for bail was rejected by the Board, appeal should have been filed before the Sessions Judge and thereafter a petition under Section 482 of the Code should have been filed before this Court. However, procedures are the hand-maidens of justice and substantive justice cannot be allowed to be defeated merely for non-compliance of procedures. Section 439 of the Code, on the other hand, confers vast jurisdiction on the Court of Sessions and the High Court to grant bail to an accused in custody under Section 439 of the Code over and above any procedural law. Thus in my considered opinion, the present petition is maintainable. As far as prima facie case is concerned, involvement of the petitioner in the offence is apparent from the statement of the co-accused Manwar basing on whose information given under Section 27 of the Evidence Act, the mobile phones and motorcycle stolen from the house of the deceased were recovered. No doubt the said piece of evidence links Manwar with, the offence but in view of restriction placed under Section 27 of the Evidence Act his statement implicating the petitioner is not admissible, then remains the confessional statement of Manwar before his friend Deepak Kumar Behera before whom he appears to have made a clean breast of everything. It is argued on behalf of the petitioner that such confession of Manwar is not admissible against the petitioner. I am unable to agree with the contention. Had it been a confession before the police, then in view of the provision under Section 25 of the Evidence Act it could not have been proved, therefore, it could not have been used against the maker of the same much less against any other person implicated by him. However, confession before any other person is admissible against maker of the confession. It is also admissible against any other person tried jointly with him for the same offence according to Section 30 of the Indian Evidence Act. Therefore, in the present case, confession of Manwar implicating himself as well as the present petitioner would be admissible against both of them if they are tried jointly. On the statement of Manwar, prima facie case is well made out against him and so also against the present petitioner as well.
5. Section 12 of the Act which deals with bail to a juvenile reads as follows:
‘12. Bail of Juvenile.— (1) When any person accused of a bailable or non-bailable offence, and apparently a juvenile, is arrested or detained or appears or is 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 time being in force, be released on bail with or without surety (or placed under the supervision of a Probation Officer or under the care of any fit institution or fit person) but he shall not be so released if there appear reasonable grounds for believing that the release is likely to bring him into association with any known criminal or expose him to moral, physical, or psychological danger or that his release would defeat the ends of justice.
(2) When such person having been arrested is not released on bail under subsection (1) by the officer-in-charge of the police station, such officer shall cause him to be kept only in an observation home in the prescribed manner until he can be brought before a Board.
(3) When such person is not released on bail under sub-section (1) by the Board it shall, instead of committing him to prison, make an order sending him to an observation home or a place of safety for such period during the pendency of the inquiry regarding him as may be specified in the order.”
6. A close reading of the aforementioned provision shows that it has been mandated upon the Court to release a person who is apparently a juvenile on bail with or without surety, howsoever heinous the crime may be and whatever the legal or other restrictions containing in the Cr. P.C or any other law may be. The only restriction is that if there appear reasonable grounds for believing that his release is likely to bring him into association with any known criminal or expose him to any moral, physical or psychological danger or his release would defeat the ends of justice, he shall not be so released.
7. Applying the above law to the present case it would be seen that though the offence is a planned murder and thus a heinous one and prima facie case is available against the petitioner, there will be no impediment for his release on bail. As it appears, the petitioner was desparate because of the untoward sexual attention bestowed upon him by the deceased. Finding no other way he associated with criminals to bring an end to the matter. He had not associated himself with criminals for any monetary gain or glamour. At the cost of repetition it may be stated that desperation had sent the petitioner to be associated with criminals and once his matter has been solved his release is less likely to bring him into association with any known criminals henceforth. His release on bail is also not likely to expose him to moral, physical or psychological danger. On the other hand, if he is not granted bail then there is scope of psychological danger. He needs parental protection and guidance to bring him back to the mainstream of the society from which he has strayed. Thus his release on bail would aid the ends of justice rather than defeat it. On the discussion above, I am satisfied that this is a fit case where bail should be granted to the petitioner. Let the petitioner be released on bail on either of his parents furnishing bond of Rs. 20,000/- (Twenty thousand) to the satisfaction of the learned Chief Judicial Magistrate-cum-Principal Magistrate, Juvenile Justice Board, Khurda in the aforesaid case. Either of the parents shall also file an affidavit undertaking to produce the juvenile in the Court/Forum as and when necessary and to keep him under close observation and not allow him to be associated with any criminal or undesirable persons.
8. The bail application is allowed.
9. Application allowed.
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