ORDER :

1. Whether the impugned order of the Juvenile Justice Board dated 13.05.2019 in Crime No. 23/2019 of Kolhar Police Station, rejecting the bail application of the petitioner and the order of the Sessions Court confirming the same in Criminal Appeal No. 37/2019 suffer any infirmity and illegality? Is the question involved in this case.

2. The petitioner was accused No. 5 in Crime No. 23/2019 of Kolhar Police Station. The said case was registered against the petitioner and four others for the offences punishable under Sections 363, 376(d), 506 IPC and Section 5(G) r/w Sections 6 and 15 of the Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO Act’) and Section 66(e) of the Information Technology Act on the complaint of ‘X’ (for the purpose of confidentiality, victim is referred to as ‘X’ henceforth) aged 15 years. By this time, the charge-sheet is filed in the case.

3. Case of the prosecution in brief is as follows:

Accused No. 1 aged 22 years was a driver by profession. The parents of the victim were hawkers selling utensils. Accused No. 1 was known to the family of ‘X’ as well as accused Nos. 2 to 5. Accused Nos. 2 to 5 were all juveniles aged 17 years. On 16.04.2019 the accused conspired to commit gang rape on the victim. In execution of such conspiracy, accused No. 1 tricked the victim to board his goods vehicle bearing No. KA/28-6643 stating that her parents have asked him to bring her to load utensils to the vehicle. On the way, the other accused boarded the vehicle. Then all of them took her to a near pump house at Halekolhar village, in an abandoned dry well they committed gang rape on her under the life threat. The fourth accused videographed the scene of the petitioner committing rape on the victim. Then, all the accused left the place threatening her of her life, if she reveals the incident to anybody.

4. Petitioner was arrested. He filed bail application before the Juvenile Justice Board, Vijayapur. The Board by impugned order rejected his bail application and directed to place him in observation home, on the following grounds:

(i) Investigation report of the probation officer does not indicate the prevailing condition in the family of the child in conflict with law and that he is studying.

(ii) Having regard to the nature of the crime, if bail is granted, it leads demoralization of the society and defeat the ends of justice.

5. The Sessions Judge concurring with findings of the Juvenile Justice Board, held that having regard to the stigma attached to the petitioner if bail is granted, he may face danger in the society and in the interest of justice he shall be lodged in the observation home. It was further held that granting bail may expose the petitioner to the association of any known criminals and expose him to moral, physical and physiological danger.

6. Learned counsel for the petitioner relying on Sections 3 and 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015 submits that gravity of the offence is inconsequential in considering the bail of juvenile, therefore, impugned order of the Courts below are liable to be set-aside.

7. In support of his contentions, learned counsel for the petitioner relies upon the following judgments:

(i) Karan vs. State through Ratkal Police Station, Kalaburagi, 2017 (3) KLJ 330

(ii) Mohit vs. State of Karnataka in Crl. R.P. No. 200065/2017, dated 06.07.2017

(iii) Ajit vs. The Sub-Inspector of Police Vinobhanagara Police Station Shivamogga and Another in Crl. Pet. No. 4505/2018, dated 30.07.2018

(iv) Mukesh vs. State of Uttar Pradesh and Another, Crl. R.P. No. 1340/2015

8. Per contra learned High Court Government Pleader submits that rejection of application by Courts below was not on the sole ground of gravity of the offence and the other factors envisaged under Section 12 of the Act were considered. He further submits that having regard to the nature of the offence, the Courts below were right in holding that release of the petitioner on bail woul