- (1.) K. N. Sinha, J. Heard learned Counsel for the revisionist and learned AGA for State Opposite Party.
(2.) REVISIONIST Lavkush Chamar alias Lavkush Seth, was challaned for the offence under Sections 363/366- A/376 IPC for Case Crime No. 165 of 2002. He moved application for bail under Section 12 of the Juvenile Justice (Care & Protection of Children) Act, 2000 (hereinafter referred to as 'act' ). His age was held to be 16 years and 9 months and he was declared to be juvenile. However, the bail application was rejected. An appeal under Section 52 of the Act was filed before the Sessions Judge, pleading that the revisionist is juvenile and he is entitled to bail. The learned Sessions Judge dismissed the appeal holding that the revisionist is not juvenile and also rejected the bail application holding that he may fall in bad company, have adverse psychological effect and may commit more such offences. I have perused the impugned order of the appellate Court, order of the Court of 1st Additional Chief Judicial Magistrate, Mirzapur and Chief Judicial Magistrate, Mirzapur refusing the bail. The First Additional Chief Judicial Magistrate, Mirzapur has held him to be juvenile. The basis, on which he held the revisionist to be juvenile was School Leaving Certificate of Class V. The order of 1st Additional Chief Judicial Magistrate, Mirzapur dated 24-4-2002 shows that the date of birth has been shown to be 4-7- 1985. The age according to the Medical Report was about 19 years. The medical report is based on the opinion of the doctor and it may vary two years either way. The apex Court in the case of Rajinder Chandra v. State of Chattisgarh & another, 2002 (1) JIC 609 (SC), has held that: "a hyper technical approach should not be adopted while determining the age of the accused for the purpose of finding out whether he is juvenile or not if two views may be possible, the Court should lean in favour of holding the accused to be juvenile in borderline cases. " The appellate Court has not properly appreciated the evidence and taken a hyper technical view. When the evidence of School records and also of the doctor was in favour of the revisionist he should not have twisted the matter in order to arrive at a different finding. The date of birth, as recorded in the School leaving certificate is 4-7-1985 hence, his age was even less than 17 years on the date of occurrence. The medical evidence also shows the age about 18 years. Thus, the 1st Additional Chief Judicial Magistrate Mirzapur had rightly held him to be juvenile.
(3.) ONCE the revisionist is held to be juvenile, the provisions of bail as contained in Section 12 of the Act, comes into play which lays down that the juvenile shall be released on bail with or without surety notwithstanding anything contained in the Code of Criminal Procedure, 1973. Only three exceptions have been laid down in Section 12 of the Act, for refusing the release which are as follows : If there appears any reasonable ground for believing that release is likely to bring him into the association of known criminals or exposes him to moral, psychological danger or that his release would defeat the ends of justice, the release no doubt can be refused if anyone of these grounds exists. It should not be merely a guess work of the Court but it should be based on some evidence may be police report, or the report of the probation officer or any other such evidence which can substantiate the refusal of release. In the case, one in hand, no such evidenced is there.;