Mohit vs State Of U.P. & Another
2013 Latest Caselaw 4967 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD

CRIMINAL REVISION No. 1631 of 2013

Revisionist : Mohit s/o Vidya Ram yadav

Opposite Parties : 1. State of U. P.

2. Jawahar Lal s/o Shanti Swarup

Counsel for the Revisionist : Rajiv Lochan Shukla

Counsel for the O. P. No. 1 : AGA

Counsel for the O. P. No. 2 : Sushil Kumar Dubey

HON'BLE ANIL KUMAR SHARMA, J

Heard learned counsel for the parties and perused the affidavits and other documents filed by the parties.

Challenge in this revision is to the order dated 18.5.2013 passed by Addl. Sessions Judge/Special Judge (SC & ST Act), Etawah in Criminal Appeal no. 43 of 2013 whereby the application of the revisionist u/s 12 of Juvenile Justice Care and Protect Act (hereinafter referred to as the 'J. J. Act' for grant of bail in case crime no. 36/2013 u/s 354(1)(i), 376(2)(H)/511, 306 and 509 IPC P. S. Jaswant Nagar, District Etawah had been rejected.

It was alleged that on 25.2.2013 at about 7 a.m. in the Main Market of Jaswant Nagar the revisionist along with his four associates caught hold the 15 years' old daughter of complainant while she was going for tution. She was dragged into a lane and all of them attempted to forcibly commit rape with her and also showed her obscene photographs. On her alarm witnesses came to her rescue. The victim consumed some poisonous substance in the market. She came back home along with her brother and narrated the incident. She became unconscious and was admitted in Saifai hospital where she died in the evening of 26.2.2013. The revisionist was declared juvenile by the Juvenile Justice Board vide order dated 20.4.2013, however, his bail application was rejected after obtaining police report and report of the Probation Officer. His aforesaid appeal filed before Sessions Judge had been rejected vide judgment dated 18.5.2013. The learned Addl. Sessions Judge while dismissing the appeal of the revisionist has held that there is every likelihood of the delinquent juvenile after release on bail would associate with criminals and expose him to moral, physical or psychological danger.

Castigating the impugned judgments, learned counsel for the revisionist has argued there is no evidence to show that if the juvenile-revisionist is released on bail, then 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 ends of justice. He further submitted that the gravity of the offence committed cannot be a ground to decline bail to a juvenile. Learned Courts below in quite cursory manner have declined bail to the applicant-petitioner. His submission is that the impugned orders passed by the courts below are not based upon definite facts and they are based on surmises and conjectures as they have not considered the report of the police and the Probation Officer.

Per contra learned counsel for the opposite party no. 2 learned AGA have contended that considering the nature of offence the revision is liable to be dismissed. They have defended the impugned order passed by the Juvenile Justice Board in declining the bail to the petitioner as also the judgment passed by the Appellate Court upholding the order passed by the Juvenile Justice Board.

In my humble opinion, the Act of 2000 being a beneficiary and social reforms oriented legislation, should be given full effect by all concerned, whenever matters relating to juvenile come for consideration before them. It is not disputed that bail application of a delinquent juvenile is to be considered with the provisions contained under Section 12 of the J.J. Act, which is as under:

"12. Bail of juvenile:- (1) When any person accused of a bailable or non-bailable offence, and apparently a juvenile, is arrested or detained or appears or is brought before a Board, such person shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law for the time being in force, be released on bail with or without surety but he shall not be so released if there appear reasonable grounds for believing that the 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.

(2) When such person having been arrested is not released on bail under Sub-section (1) by the officer- in-charge of the police station, such officer shall cause him to be kept only in an observation home in the prescribed manner until he can be brought before a Board.

(3) When such person is not released on bail under Sub-section (1) by the Board it shall, instead of committing him to prison, made an order sending him to an observation home or a place of safety for such period during the pendency of the inquiry regarding him as may be specified in the order."

The above provisions clearly show that once a person is held to be a juvenile in conflict with law, then Section 12 of the Act would govern the question of grant of bail and the custody of juvenile and it will not be governed by the provisions of the Code of Criminal Procedure. It is important to note that gravity or seriousness of the offence, divorced from above exceptional reasons, has not been taken as an obstacle or hindrance by the legislature to refuse bail to a delinquent juvenile. No straight jacket formula of inflexible nature can be laid down as it would depend on facts and circumstances of each case. Words "ends of Justice" should be confined to those facts which show that the grant of bail itself is likely to result in injustice. For example, there is likelihood of the juvenile delinquent, to whom the bail is granted, interfering with the course of justice or he may pressurize the prosecution witnesses; he is likely to abscond from the jurisdiction of the Court. There may be other examples also. Burden to show that if delinquent juvenile is released on bail there appears a reasonable ground for believing that the 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 is on the prosecution. In the instant case no reason has been assigned by appellate court in the impugned order to arrive at conclusion that if petitioner is released on bail it will defeat the ends of justice. Following observations have been made by the learned Addl. Sessions to dismiss the appeal of the revisionst:

"ekeys dh rF;ksa ,oa ifjfLFkfr;ksa esa ;g lEHkkO; izrhr gksrk gS fd vihykFkhZ dks izfrHkw ij fueqZDr gksus ls mlds mu vijkf/k;ksa ds lEidZ esa vkus dh lEHkkouk gS rFkk izfrHkw ij fueqZDr gksus ls uSfrd] 'kkjhfjd ,oa euksoSKkfud [krjk mRiUu gksuk lEHkkO; gSA "

Had cogent reasons for reaching the above conclusions been given in the impugned judgment, then it would have helped this Court in evaluating them on the touchstone of probabilities.

The report of the Probation Officer does not substantiate the conclusion drawn by the appellate Court. He has reported that the father of the revisionist is a lecturer, mother is house wife and he has one brother and one sister (both married). Nothing adverse has been noted in the report about the family and previous conduct and character of the revisionist. In the end of the report the Probation Officer under heading 'ifjoh{kk vf/[email protected] dY;k.k vf/kdkjh }kjk mipkj ds laca/k esa flQkfj'k vkSj mldh ;kstuk' has observed as under:

"fd'kksj eksfgr ds lEcU/k esa Fkkuk/;{k tloaruxj ls vk[;k izkIr dh xbZ gSA blesa vafdr fd;k x;k gS fd fd'kksj dk iwoZ vkijkf/kd bfrgkl 'kwU; gSA fd'kksj ds firk fgUnw bUVj dkyst esa v/;kid gS vkSj ifjokj dh vkfFkZd o lkekftd fLFkfr vPNh gSA v/;;u ds nkSjku fo|ky; esa fd'kksj dk pfj= vPNk vafdr fd;k gSa lkekftd Lrj ij ,sls dksbZ rF; laKku esa ugha ftlls bl ?kVuk ls iwoZ fd'kksj dks----------vkijkf/kd izo`fr dks fl) djrs gksaA pwafd fd'kksj v/;;ujr gS ,oa mlds ;g vijk/k vo;Ld gksus dh fLFkfr esa izFke ckj dkfjr fd;k x;k gSA vr% ,slh fLFkfr esa fd'kksj dks mlds firk tks fd'kksj dks vius fu;U=.k esa j[kus esa l{ke izrhr gksrs gS] dh laj{kk esa izfrHkw ij eqDr fd;s tkus dh laLrqfr fd;k tkuk mfpr izrhr gksrk gSA "

In the counter-affidavit the opposite party no. 2 has stated that the father of the revisionist has criminal proclivities as he was involved in three criminal cases. First case is u/s 307 IPC being crime no. 180 of 1998, the other is case crime no. 179 of 2007 u/s 409 IPC as he has illegally drawn salary for the period he was confined in jail in the 1st case and last is a non-cognizable offence u/s 323, 504 IPC. In rejoinder affidavit it has been averred that father of the revisionist has been acquitted in case crime no. 180 of 1998 and the case of 2007 is pending. Thus, it cannot be said that the father of the revisionist has bad criminal antecedents. He is still a lecturer in an Inter College. The other siblings of the revisionist are married, so it is difficult to comprehend that the parents of the revisionist would have no control over him.

In view of the above discussion, in my opinion the impugned order dated 18.5.2013 passed by the appellate court and the order dated 27.4.2013 passed by Juvenile Board are not sustainable in law and both the courts below have committed jurisdictional error and illegality in passing the orders. Consequently, revision is allowed and the aforesaid impugned orders are set aside. It is directed that revisionist shall be released on bail on executing a personal bond by his natural guardian with two solvent sureties each in the like amount to the satisfaction of the Principal Magistrate, Juvenile Justice Board, Etawah with the stipulation that on all the subsequent dates of hearing, he shall produce the delinquent juvenile before the said Board during pendency of the inquiry and his guardian shall keep proper control and look-after of the juvenile delinquent and keep him away from the company of known criminals. In case of default, the Board would be competent to cancel the bail of the revisionist after giving an opportunity of hearing to him.

(Anil Kumar Sharma, J)

August 07, 2013

KCS/-