Shiv Kishan Vs. State of Rajasthan - Court Judgment

Excerpt:
- section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the juvenile justice act, 2000, came into force - juvenile act, of 2000 has been given retrospective effect by rule 12 of juvenile justice rule, 2007 - as such, accused has to be treated as juvenile under the said act. - 15,000/-.co-accused jayant pandey was released on bail, however, subsequently, he absconded and therefore, the trial court forfeited the bail bonds of accused jayant pandey as well as the surety bonds alleged to have been filed by the appellant.h.r. panwar, j.1. the notice of final disposal is served on the public prosecutor. with the consent of the counsel for the parties, the appeal is being finally heard and disposed of at admission stage.2. by this criminal appeal under section 449(2) cr.p.c., the appellant has challenged the orders dated 5.10.2004 and 29.10.2004, passed by a the learned additional sessions judge (fast track), nagaur (for short 'the trial court') in criminal misc. no. 7/2004 whereby the trial court rejected the application filed by the appellant under section 446 cr.p.c. and forfeited the surety bond and directed to recover a sum of rs. 15,000/- from the appellant.3. the facts and circumstances giving rise to the instant appeal are that in sessions case no. 244/2001 (state v. deep singh and ors.) pending before the trial court, it is alleged that the appellant stood surety to co-accused jayant pandey in a sum of rs. 15,000/-. co-accused jayant pandey was released on bail, however, subsequently, he absconded and therefore, the trial court forfeited the bail bonds of accused jayant pandey as well as the surety bonds alleged to have been filed by the appellant. on receiving the notice from the trial court, the appellant appeared before the trial court and filed reply stating therein that enquiry has been wrongly initiated accused him under section 446 cr.p.c. and further stated that he never stood surety for accused jayant pandey, who alleged to have absconded. he has denied having signed the surety bond and stated that some one else, impersonating himself as the appellant had signed the surety bond and got accused jayant pandey released on bail. the trial court, without enquiring into as to whether the appellant stood surety for accused jayant pandey or whether it was the appellant who has signed the surety for co-accused jayant pandey, straight way proceeded the forfeit the amount of surety bonds and directed the appellant to pay a sun of rs. 15,000/-.4. it appears that the trial court has not considered the contentions issue raised by the appellant. unless it is determined that it was the appellant who stood surety and signed the surety bound for accused jayant pandey, the direction for recovery of amount of surety bonds cannot be termed as justified. in the circumstances, therefore, the order impugned cannot be sustained and liable to be set aside.5. consequently, the appeal is allowed. the impugned orders dated 5.10.2004 and 29.10.2004 are set-aside. the matter is remanded to the trial court to hold the enquiry as to whether it was the appellant, who has stood the surety and then decide the matter afresh.