RUKSAD Vs. STATE OF HARYANA

JUDGEMENT

(1.) The challenge in the present appeal is to the order dtd. 29/4/2020, passed by the Additional Sessions Judge, Nuh, vide which the application for bail filed by the present appellant under Sec. 12 of Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred as "the Act'), in FIR No.148 of 2019, under Ss. 148, 149, 323, 342, 506, 307 and 302 IPC, registered at Police Station Rozka Meo, District Nuh, has been dismissed.

(2.) Brief facts of the prosecution case are that the present FIR was registered on the basis of statement of complainant Kundan son ofShrichand, resident of village Udaka, who had stated that, on 15/7/2019 a quarrel had taken place in their village between Jamshed son of Mamrez and Akthar son of Rustam; his nephew Naveen son of Mahavir was going to Sohna and Jamshed asked him for a lift and he then went to Sohna with Naveen and the said Jamshed had filed a complaint in the Police Station regarding the said quarrel. On 19/7/2019, a panchayat had been convened to resolve the dispute between Jamshed and Akthar, in which, a settlement had been arrived at and while Naveen was going back to his house, the complainant was accompanying him and on the way Maksudan-wife and Sarjina-daughter of Akthar picked up bricks from the roof of the house and threw the same on Naveen hitting him on the head. After being hit in the head, Naveen suffered a serious injury and meanwhile, Jekam son of Nashmdin dragged Naveen inside the house and bolted the door from inside. Thereafter Akthar, his wife, daughter and son Sajid gave beatings to Naveen in the house and when the complainant went to his rescue, then, Sajid, Akthar, Jekam, Sarjina and Maksudan hit him with stones and cricket bat and in the meanwhile, Ram Avtar brother and Satish son along with Nitesh and Prem came there and thereafter, Ruksar (present petitioner), Saikul, Sarjina, Maksudan, Sajid, Akthar had attacked them with lathies, dandas, cricket bat and stones and as a result, Naveen succumbed to the injuries and offence under Sec. 302 IPC was added. Thereafter, the present appellant had filed for bail under Sec. 12 of the Act, which was dismissed by the Additional Sessions Judge, Nuh.

(3.) Learned counsel for the appellant has submitted that even asper the prosecution case, the appellant has not been attributed any specific injuries nor he is stated to be armed with any specific weapon and although, the recovery of stick (danda) is stated to have been made from the appellant, it is submitted that the dispute was between Jamshed and Akhtar and the injuries on the head of the deceased had been given by the co-accused, which had been specifically detailed in the prosecution version. It is also submitted that there are 11 accused and the present appellant has only been nominated on the pretext of being the son of Akhtar. It is argued that on the date of the alleged incident, the appellant was 16 years and 02 months of age. It is also submitted that Aamir (co-accused), who was an adult on the date of the incident, has already been granted regular bail, vide order dtd. 16/11/2021, by a Co-ordinate Bench of this Court, passed in CRM-M-35750-2020 and the said Aamir was in custody since 29/7/2019, whereas, the present appellant apart from being lesser than 18 years of age at the time of incidence, is in custody since 24/7/2019 and thus, the custody undergone by the present appellant is more than the custody of the said Aamir. It is submitted that there are 30 witnesses in all, out of which, 10 have been examined and although, 5 have been given up, 15 witnesses are yet to be examined. It is submitted that even in case the appellant was an adult, then also, on the basis of the custody period and on the ground that no specific role has been attributed to him, he deserves to be released on regular bail. It is also stated that at the time of passing of the impugned order, the Court had not even considered Sec. 12 of the Act and the general principle that the bail is a rule and not jail, and it is not even observed in the impugned order thatthe case of the appellant is covered under the three exceptions as mentioned in Sec. 12 of the Act. It is also submitted that the appellant is not involved in any other case. Learned counsel for the appellant has also pointed out that earlier the appellant had filed a CRR-906-2021, in which, the preliminary objection had been taken by counsel for the complainant and on 18/11/2021, this Court was pleased to pass the following order : -