Allahabad High Court
Abbu Sahma @ Ujepha Khan vs The State Of U.P. & Another on 29 April, 2015
Bench: Vishnu Chandra Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?AFR
Court No. - 21
Case :- CRIMINAL REVISION No. - 546 of 2014
Revisionist :- Abbu Sahma @ Ujepha Khan
Opposite Party :- The State Of U.P. & Another
Counsel for Revisionist :- Nadeem Murtaza
Counsel for Opposite Party :- Govt. Advocate
And
Case :- CRIMINAL REVISION No. - 547 of 2014
Revisionist :- Naved
Opposite Party :- The State Of U.P. & Another
Counsel for Revisionist :- Nadeem Murtaza
Counsel for Opposite Party :- Govt. Advocate,Fazlur Rahman Ansari
And
Case :- CRIMINAL REVISION No. - 548 of 2014
Revisionist :- Talib
Opposite Party :- The State Of U.P. & Another
Counsel for Revisionist :- Nadeem Murtaza
Counsel for Opposite Party :- Govt. Advocate
Hon'ble Vishnu Chandra Gupta,J.
Heard learned counsel for the revisionists and learned A.G.A. for the State.
By means of this criminal revision under Section 53 of the Juvenile (Care and protection of children) Act 2000 read with sections 397/401 Cr.P.C., the revisionist, namely, Abbu Sahma @ Ujepha Khan has prayed for quashing the order dated 25.09.2014 passed by learned Sessions Judge, Unnao in Criminal Appeal No. 108 of 2014 (Abbu Sahma @ Ujepha Khan Vs. State of U.P.) whereby the criminal appeal filed on behalf of the revisionist has been dismissed affirming the order of rejecting the bail vide order dated 17.09.2014 passed by Juvenile Justice Board, Unnao in Bail Application No. 36 of 2014, arising out of Case Crime No. 1044 of 2014, under Section 376 (2)(d) I.P.C. and 3/4 Prevention of Children from Sexual Offences Act (herein after referred to as the 'POCSO Act'), Police Station Bangarmau, District- Unnao.
In criminal revision No. 547 of 2014 under Section 53 of the Juvenile (Care and protection of children) Act 2000 read with sections 397/401 Cr.P.C., the revisionist, namely, Naved has prayed for quashing the order dated 25.09.2014 passed by learned Sessions Judge, Unnao in Criminal Appeal No. 110 of 2014 (Naved Vs. State of U.P.) whereby the criminal appeal filed on behalf of the revisionist has been dismissed affirming the order of rejecting the bail vide order dated 17.09.2014 passed by Juvenile Justice Board, Unnao in Bail Application No. 35 of 2014, arising out of Case Crime No. 1044 of 2014, under Section 376 (2)(d) I.P.C. and 3/4 POCSO Act, Police Station Bangarmau, District- Unnao.
In criminal revision No. 548 of 2014 under Section 53 of the Juvenile (Care and protection of children) Act 2000 read with sections 397/401 Cr.P.C., the revisionist, namely, Talib has prayed for quashing the order dated 25.09.2014 passed by learned Sessions Judge, Unnao in Criminal Appeal No. 109 of 2014 (Talib Vs. State of U.P.) whereby the criminal appeal filed on behalf of the revisionist has been dismissed affirming the order of rejecting the bail vide order dated 17.09.2014 passed by Juvenile Justice Board, Unnao in Bail Application No. 37 of 2014, arising out of Case Crime No. 1044 of 2014, under Section 376 (2)(d) I.P.C. and 3/4 POCSO Act, Police Station Bangarmau, District- Unnao.
The revisionists in all three cases are made accused in Case Crime No. 1044 of 2014, under Section 376 (2) (d) I.P.C. and 3/4 POCSO Act, Police Station Bangarmau, District- Unnao, hence these three revisions are being disposed of by a common order as the question of law and facts almost are common to all.
In criminal revision no. 546 of 2014, the revisionist- Abbu Sahma @ Ujepha Khan whose date of birth was taken into consideration by the Juvenile Board for declaring him juvenile in conflict with law is 10.03.2004. In criminal revision no. 547 of 2014, the revisionist- Naved whose date of birth was taken into consideration by the Juvenile Board for declaring him juvenile in conflict with law is 15.02.2005. In criminal revision no. 548 of 2014, the revisionist- Talib whose date of birth was taken into consideration by the Juvenile Board for declaring him juvenile in conflict with law is 02.05.2006.
The orders declaring juvenile have been filed in the respective files. The date of commission of offence is 20.07.2014. As such on the date of commission of Crime the revisionist- Abbu Sahma @ Ujenpha Khan was hardly 10 years and 3 months. The revisionist- Naved was hardly 9 years and 5 months and the revisionist- Talib was hardly 8 years and 2 months.
Section 83 of the Indian Panel Code deals with offence committed by a child above seven years and under twelve years of age which reads as under:-
"83. Act of a child above seven and under twelve of immature understanding- Nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion."
Section 83 I.P.C. prescribes that nothing is an offence which is done by such a child, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion.
No such finding has been recorded either at the time of declaring the revisionist as juvenile or at the time of deciding the bail applications.
In view of the above, the orders rejecting bail applications can not be allowed to sustain. These three criminal revisions deserved to be allowed.
Hence, these three criminal revisions are partly allowed. The impugned order dated 25.09.2014 passed by learned Sessions Judge, Unnao in above mentioned criminal revisions are set-aside and the matters are remanded back to the learned appellate Court to decide the appeals afresh in accordance with law and also keeping in view the provisions contained in Section 83 I.P.C. after giving opportunity of being heard to the parties.
Order Date :- 29.4.2015
R.K.P.
