VINOD PRASAD, J.
This revision U/S 53 of Juvenile Justice ( Care And Protection Of Children) Act, 2000, ( herein after referred to as the Act) has been preferred by Kushagra Mokhariwale son of a bank cashier Diwakar Mokhriwale for being released on bail in crime no. 247 of 2011, under Section 386 I.P.C., P.S. Hariparwat, District Agra. For seeking desired relief revisionist has challenged impugned orders dated 20.4.2011 passed by Juvenile Justice Board, Agra, and order dated 7.5.2011 passed by Additional Sessions Judge, Court No. 1, Agra in Juvenile Appeal No. 116 of 2011. By the aforesaid orders, Juvenile Justice Board and appellate Court, both have refused to release the revisionist on bail in the aforementioned crime number for aforementioned offence.
Before entering into discussions on the contentions raised and opposed in this revision, a quick search light on the back ground facts indicate that informant Ramesh Nagvani lodged a FIR at P.S. Hariparwat on 25.3.2011 at 8.22 p.m. against the revisionist and management St. Paul's School, Bag Farjana, Civil Lines, Agra, registered as crime no. 247 of 2011, allegating therein that the informant is a resident of 51, Bag Farjana, Agra and his grand son Kushagra Nagvani S/o Devendra Nagvani, aged about 13 years, is a student of class 7th of St. Paul's School, Bag Farjana. Revisionist aged about 18 years son of Diwakar Mokhriwale, an employee of Punjab National Bank, Shahzad Mandi, Agra and resident of 2/47- A Ram Nagar Colony, Agra, a student of class 11th of the same institution, was extorting money since last two years by criminal intimidation and thereby had already extorted Rs. 25-30 lacs in cash and jewelery. When informant was made aware of it he contacted the Principal of the institution and informed him about the incident but the Principal replied that for such incidents, neither the institution nor he is personally responsible and the family members can deal with such incidents. Receiving such an answer informant conducted private inquiries, which revealed that revisionist had criminal mind with associations of persons indulging in criminal activities. On 25.3.2011, revisionist at 10.30 A.M. and 1 p.m. had called on grand son on his mobile number 9927656568 and had demanded Rs. 1,40,000/- and had threatened that in case the money is not parted with he will get the grandson abducted and annihilated. It was further allegated that because of such threats family members and the grand son were terrified. With such allegations informant had lodged his FIR on 25.3.2011 as annexure no. 1.
It seems that registration of crime resulted in apprehending the revisionist, who thereafter moved an application for being declared a juvenile. Vide order dated 11.4.2011, annexure no. 2, Juvenile Justice Board, Agra concluded that the date of birth of the revisionist is 7.10.1993 and hence on the date of the incident ie: 25.3.2011, revisionist was 17 years, 5 months and 18 days and hence is a juvenile in conflict with law. Copy of mark-sheet from ISCE, New Delhi, annexure no.3, also records the same date of birth of the revisionist. Regarding family back ground report of District Probation Officer, annexure no.4, indicates that revisionist family consists of his parents Diwakar Mokhriwale and Smt. Sunita Mokhriwale and a sister Smt. Ruchi Dev who is an MBA and gainfully employed in Gurgaon. Father is a cashier in P.N.B. and mother is a house wife. Said document further revealed that but for the present crime, revisionist had no other crime history. Annnexure no. 4 further records that the revisionist is interested in wandering and hoteliering. It is further recorded in it that on inquiry from the neighborhood, it was informed that the conduct of the revisionist with everyone is alright and normal. No criminal history was disclosed and the alleged money was spent in roaming in association with friends and hoteliering. District Probation Officer had recommended that looking to the juvenility of the revisionist and his future career, it was desirable that he be released on probation in proper custody.
After being adjudged a juvenile revisionist moved to Juvenile Board for being released on bail but his said prayer was refused by the Board vide it's order dated 20.4.2011 by recording a finding that there are chances and likelihood that after being released on bail, he may fall in the company of criminals and, therefore, his moral, physical and psychological trait/ qualities may deteriorate with additional finding that his release on bail will defeat cause of justice. Aggrieved by rejection of his bail prayer by Juvenile Justice Board revisionist preferred Juvenile Appeal No. 116 of 2011, U/S 52 of the Act before Sessions Judge, Agra, but failed to secure his release from there as well, as Additional Sessions Judge, Court No. 1, Agra vide his order dated 7.5.2011 negated his release prayer and recorded findings that the revisionist is more than 17 years of age, his father is a cashier in bank and his parents have got no control over him and for two years, their ward was spending time in hotel. Lower Appellate Court also recorded findings that the revisionist is extorting money since last two years and his parents have got no knowledge about his activities and, therefore, criminal proclivity is germinating in the revisionist and, therefore, in spite of the fact that Probation Officer's report is favourable, revisionist cannot be allowed to be released on bail with such parents. Lower Appellate Court, therefore, dismissed the appeal. Hence this revision.
I have heard Sri Akhilesh Srivastava and Sri Ajay Dubey advocates in support of this revision and Sri Hitesh Pachori, learned counsel for the respondent no. 2 and Sri Patanjali Mishra, learned AGA for the State in opposition.
Criticizing and castigating both the impugned orders it was contended by revisionist's counsel that the charge against the revisionist is absolutely false. Kushagra Nagvani is the grand son of the informant, who is a Jeweler. Victim was given money by his parents with a mobile phone, which he used to carry with him and he used to entertain his friends. Parents and family relatives including informant had no control over Kushagra Nagvani and they parted with lacs of rupees on his mere asking, according to their own allegations. Since last two years parents have given him Rs.25 to 30 lacks according to prosecution case itself. This clearly indicates the careless attitude of the parents and the informant towards his grand son. The allegations further indicates that in spite of the fact that the informant was informed about the alleged incident, he never contacted the parents of the revisionist and tolerated the incident for days and weeks. Giving mobile to a child of 13 years and giving him Rs. 25 to 30 lacs clearly indicates the way in which Kushagra Nagvani was treated and pampered by the family members. They never inquired from him as to where and in what manner he was spending money of such an enormous amount. Learned counsel further contended that without looking into the actual aspect from a practical point of view both the courts below rejected the bail prayer of the revisionist in an unwarranted manner. They further submitted that revisionist have got no criminal proclivity and at least since last two years there has been no criminal activity undertaken by him. Allegations of extortion is absolutely false, as Kushagra Nagvani himself was bring money and spending it in merry making with his mates. He was one of the beneficiaries of hoteliering and wandering and for that revisionist alone cannot be held responsible. It was further submitted that the revisionist has an excellent academic career and his mark-sheet indicates that at least in three subjects English, Hindi and Environmental Education he had obtained first division by securing 60% and above marks. Further contention was that none of revisionist parents had got any criminal history and the father was employed as a responsible officer in Punjab National Bank and his sister is MBA working in Gurgaon and hence revisionist belongs to a respectable family. It was next submitted that the lower appellate court adopted a lop sided approach that revisionist's parents do not have any control over him without any input material. All the findings recorded against the family members of the revisionist by the lower appellate court are conjectural, hypothetical and indicate that lower appellate court was influenced by the victim's family status. Recording findings contrary to the material on record on pure hypothetical basis is totally unjust and uncalled for. Opinion by Juvenile Justice Board and appellate court that after being released on bail revisionist is likely to fall in company of criminals and thereby his moral and psychological qualities will deteriorate are based on unfounded assumptions. No neighbour had any complaint and the behaviour of the revisionist with them was good. It was thus prayed that bail prayer of the revisionist be accepted and he be released on bail and instant revision be allowed.
Sri Hitesh Pachori, learned counsel for respondent no.2 and learned AGA argued to the contrary and submitted that since last two years revisionist had been an extortionist for enjoying hoteliering and wandering. His conduct indicates that he has got criminal proclivity and therefore should not be released on bail. They submitted that the impugned orders are infallible and be upheld as they are not susceptible to be altered.
I have considered the arguments of both the sides and have gone through the material on record. Before vetting facts and circumstances of the revision a quick glimpse on the relevant provision governing bail to a juvenile in conflict with law as enacted in Juvenile Justice Act. Section 12 of the Act deals with such power by the Board or the courts. It enacts-
“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."
What is discernible from above section is that a juvenile should be granted bail unless his case falls within one of the exceptions engrafted therein and those are that “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.” Unless the aforesaid rider is satisfied bail to a juvenile should not be refused. It is significant to note that gravity of offence or it's seriousness alone, divorced from above exceptional reasons, has not been taken as a rider by the legislature to deny bail to a juvenile in conflict with law. It is only danger to his moral, physical and psychological qualities and likely hood of his attaching himself with criminals or his release defeating ends of justice that Board or the courts may not exercise discretion in his favour and enlarge him on bail. For such a determination no hard and fast rule of inflexible nature can be laid down as it depends on facts and circumstances peculiar to each case. There is no dearth of judicial pronouncements supporting above view and, therefore, without being voluminous some of the decisions are referred to below.
In A Juvenile v. State of Orissa: 2009 Cr.L.J. 2002 it has been held:-
“7. 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.”
In Sanjay Chaurasia v. State of U. P. and another: 2006 (4) ALJ 353 it has been laid down by this court as under:-
"10. In case of the refusal of the bail, some reasonable grounds for believing above-mentioned exceptions must be brought before the Courts concerned by the prosecution but in the present case, no such ground for believing any of the above-mentioned exceptions has been brought by the prosecution before the Juvenile Justice Board and Appellate Court. The Appellate Court dismissed the appeal only on the presumption that due to commission of this offence, the father and other relatives of other kidnapped boy had developed enmity with the revisionist, that is why in case of his release, the physical and mental life of the revisionist will be in danger and his release will defeat the ends of justice but substantial to this presumption no material has been brought before the Appellate Court and the same has not been discussed and only on the basis of the presumption, Juvenile Justice Board has refused the Bail of the revisionist which is in the present case is unjustified and against the spirit of the Act."
In Ravi-Ul-Islam v. State (NCT, Delhi): 2007 Cr.L.J. 612 it has been held as under:-
“6. Looking at the Social Investigation Report, it is difficult to come to the conclusion that the release of the juvenile would bring him into association of any known criminal or expose him to any physical or moral danger or his release would defeat the ends of justice. Accordingly, in view of the specific provisions of Section 12 of the said Act, the petitioner would be clearly entitled to be released on bail.”
Case of the revisionist has to be considered in the light of above exposition of law. When facts of the revision are summated it transpires that both, the victim and the accused, are juveniles. Their conduct has to be analyzed and judged in a dispassionate way. There is no report against the revisionist of indulging into any crime. According to the allegations and the report from the District Probation Officer revisionist only indulges in hoteliering and wandering along with his pals. In such a view, there was no chance of further degradation of his psychological and moral qualities. His family is a respectable family as his father is a Cashier in Punjab National Bank and his sister is gainfully employed in Gurgaon after completing her M.B.A. course. Since the revisionist is a juvenile and there is no report of his having any criminal proclivity or association with criminals, it could not have been concluded that his release will defeat ends of justice and he will keep associations with criminals after being released on bail and hence be denied bail. Bail to a juvenile cannot be refused in an uncared for manner on conjectures and surmises which should be done only in accordance with section 12 of the Act. There was total absence of material and no reasonable ground existed for believing that after being released on bail, revisionist is likely to come in association with known criminal or expose him to moral, physical and psychological danger. The finding that ends of justice will be defeated by granting him bail is based on no material and are conjectural and hypothetical.
On the other hand what unerringly transpires from the F.I.R. allegations is that parents of the victims in an uncared for manner parted with Rs. 25 to 30 lacs within a span of two years without making any inquiry from the victim himself as to where and in what manner he was spending such huge fortune. Very belatedly, the grand father lodges the F.I.R. Parents of the victim never came forward at least till this stage nor there is any material to that effect in the revision in support of the same. Grand father is the informant. It also transpires that victim belongs to a family of jeweler, who seems to be very rich people. Although Kushgra Nagvani was a student of class 7th but he had got his own mobile set and was handling lacs of rupees. His educational institution is in the same locality where the victim and informants resides. For more than two years the victim kept it a secret from his family regarding alleged extortion and he parted away with money all the times without complaining. All theses aspects should have been considered by both the courts below.
Further appellate court for no reasons without any basis recorded wholly unwarranted findings that the victim cannot be given in the custody of his parents and has observed against their conduct. On the one hand lower court castigated the family members of the revisionist but on the other hand tolerated totally careless and uncalled for attitude by victim's family. Giving lacs of rupees to young boy of 13 years without inquiring about the necessity of the same is a most careless conduct of the family members.
Lower appellate Court also did not look into the decisions of this Court cited before it from a correct point of view. Decisions in Dharamveer Vs. State, 2010(71) ACC 39 and Amit Kumar Vs. State of U.P.: 2010(71) ACC 209 supported revisionist pleas.
From the discussions made above, I am of the opinion that both the courts below erred in not exercising their discretionary power in favour of the revisionist and impugned orders suffers from patent error of law as well as fact and cannot be sustained. Concludingly, this revision is allowed. Both the impugned orders dated 20.4.2011 passed by Juvenile Justice Board, Agra and order dated7.5.2011 passed by Additional Sessions Judge, court no.1, Agra are hereby set aside. Revisionist Kushagra Mokhariwale is directed to be released on bail on his father Diwakar Mokhariwale executing a personal bond of Rs.50,000/- with two solvent sureties each in the like amount to the satisfaction of Juvenile Justice Board, Agra on the condition that he will keep the revisionist in his proper care and custody will constantly contact his school management, if he continues with the studies and will report to the Juvenile Justice Board, Agra once in a two months regarding the progress made by the revisionist.
With the aforesaid directions, this revision is allowed.