A JUVENILE Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE petitioner is an accused in J. G. R. Case No. 27 of 2008 pending in the Court of learned Chief Judicial Magis-trate-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.