Ashu Kumar vs State Of U.P. And Anr.
2015 Latest Caselaw 672 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 22 AFR
 

 
Case :- CRIMINAL REVISION No. - 10 of 2014   
 

 
Revisionist :- Ashu Kumar
 
Opposite Party :- State Of U.P. And Anr.
 
Counsel for Revisionist :- Pankaj Bharti,Vinay Sharma
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Arvind Kumar Mishra-I,J. 

List is revised.

As per office report dated 26.08.2014, notice upon the opposite party no.2 has been served personally.  Despite repeated call, no one appears on behalf of the opposite party no.2.

Heard learned counsel for the revisionist and the learned AGA for the State.

By means of the instant revision, the revisionist Vijaypal father/natural guardian son of Fattan has sought bail of his minor son Ashu Kumar in Case No.10/11 of 2013 State Vs. Ashu Kumar arising out of Case Crime No.18 of 2013 under Sections 376(2) (g), 364 I.P.C. Police Station Civil Lines, District Muzaffarnagar, with the prayer that the impugned order dated 27.11.2013 passed by the learned Sessions Judge, Muzaffarnagar, in Criminal Appeal No.103 of 2013, affirming the order dated 01.11.2013 passed by the Juvenile Justice Board, Muzaffarnagar, be set aside and the application moved for bail of delinquent minor be allowed.

Brief sketch of relevant facts as discernible from record indicate that an FIR was lodged on 09.01.2013 under Sections 364, 376 (2) (g) I.P.C., which was registered at Case Crime No.18 of 2013, Police Station Civil Lines, District Muzaffar Nagar, wherein the delinquent juvenile along with other co-accused were named and alleged to have committed offence of gang rape. The matter was investigated into and the statement of the victim was also got recorded under Section 164 Cr.P.C. On completion of the investigation after collecting all the relevant material, the Investigating Officer has submitted charge sheet against the accused persons including the delinquent minor under the aforesaid sections of I.P.C.

During course of proceeding, an application was moved by the applicant Ashu Kumar for declaring him juvenile. This application was considered by the Juvenile Justice Board, Muzaffarnagar and the same was allowed vide order dated 19.10.2013.

The bail application was initially moved before the Juvenile Justice Board which was rejected vide order dated 01.11.2013, against which Criminal Appeal No.103 of 2013 was preferred. Upon consideration of the same, the learned Sessions Judge, Muzaffar Nagar rejected/dismissed the prayer for bail made in the aforesaid appeal. Hence this revision.

Learned counsel for the revisionist submits that the parameters required to be considered for granting or not granting the bail to the delinquent minor are to be read in context to the mandate contained under Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to "as the Act"), and the gravity of the offence will not be a guiding factor while considering the bail application of the delinquent juvenile.

Cutting short his argument, learned counsel for the revisionist has emphasized that the court below was very much guided by the gravity of the offence and completely overlooked and misread the report submitted by the District Probation Officer, wherein parents of the delinquent minor have given an undertaking that in case the delinquent minor is released on bail, then safety, custody and care of the delinquent minor will be taken care of by them.

Learned AGA has opposed the prayer so made and has submitted that the learned Sessions Judge was basically guided by the material on record particularly by the fact that in case the delinquent minor is released on bail there is likelihood of his repeating the offence, which under the circumstances, was justified conclusion and no interference is required by this Court.

Considered the above submissions and also perused the orders impugned in the instant revision.

In view of above rival submissions the moot point involved in this revision for adjudication relates to the fact as to whether the bail to the delinquent juvenile in conflict with law will have to be considered on the strength of the merits of the case, or on gravity of offence or on the parameters as laid down under Section 12 of the Act. Before dealing with the matter, it would be appropriate to take into account Section 12 of the Act which is extracted hereinunder:

"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 1[or placed under the supervision of a Probation Officer or under the care of any fit institution or fit person] 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, make 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 law as contained under sub-section (1) of Section 12 of the Act categorizes a situation when bail to a delinquent juvenile can be refused.

In so far as the mandate of the aforesaid Section 12 of the Act relating to the grant of bail to a delinquent juvenile is concerned,......the only exception given for rejecting a bail stipulates to the extent that he shall not be so released if there appears 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.

In view of the mandate aforesaid, it is obvious that if the aforesaid conditions are existing and there is reasonable likelihood of minor coming into association with any known criminal or he is likely to be exposed to moral, physical or psychological danger or his release would defeat the ends of justice, then the bail to the delinquent juvenile in conflict with law will not be allowed.

Even as per settled position of law, the merits/gravity of the offence will not be the sole guiding factor for disposal of the bail application of the delinquent juvenile in conflict with law. It is true that the first information report has been lodged against the revisionist under Section 376(2) (g) and 364 I.P.C. but gravity of the offence loses significance in view of the report of the District Probation Officer dated 30.10.2013 annexed as annexure no.11 to the affidavit filed in support of this revision, wherein, it has been specifically stated that the parents of the minor are willing to reform their child. This positively indicates that parents are ready to take custody of their son with a will to improve upon his life.

However, it has been opined by the District Probation Officer that the prayer for bail is opposed, but there is no supporting material regarding above observations as to why the bail application is opposed by the District Probation Officer without there being any supporting material giving rise to the possibility of the minor falling into company of the known criminal or there being physical or psychological danger to the safety of the minor or otherwise to secure ends of justice. Therefore, it can be conveniently observed that the bail application of the minor cannot be opposed simplicitor on the ground of gravity of offence when parents/guardian of the delinquent juvenile in conflict with law are ready to do reformative act on their part for upliftment of their child.

The Juvenile Justice Board, Muzaffarnagar completely overlooked this particular aspect of the case, while rejecting the bail application. Even learned Sessions Judge while deciding Criminal Appeal No.103 of 2013 was very much influenced by the gravity of the offence and did not take into account the very observation made in the report of the District Probation Officer that the parents of the minor are willing to reform their child and there is nothing on record which may reflect that the mandate as laid down under sub-section (1) of section 12 of the Act will be violated, in case the delinquent minor is released on bail. In absence of any such clear cut finding based upon sufficient supporting material that the release of the delinquent juvenile will be in violation of the conditions contained under Section 12 (1) of the Act, it would not be proper to give primacy to gravity of the offence alone. The pertinent point is whether the release would bring the minor into association with any known criminal or will put him into physical, psychological or moral danger or it would defeat the ends of justice. In that perspective, it was incumbent upon the learned Sessions Judge, Muzaffarnagar to have taken into consideration the aforesaid mandate as contained under sub-section (1) of Section 12 of the Act. Even the report of the District Probation Officer admittedly lacks any relevant and supporting material, which may, indicate any reasonable possibility that in case juvenile is released on bail the ends of justice would be defeated.

Learned counsel for the revisionist submits that the natural guardian Harpal on behalf of the delinquent minor undertakes to exercise the complete control over the delinquent and will not bring him into association with any know criminal or will not put him in such situation that will put the minor into physical, mental or psychological danger and the delinquent will not repeat the offence alleged against him and he would be reformed.

In the case of A Juvenile v. State of Orissa: 2009 Cr.L.J. 2002 it has been held:-

"7. A close reading of the aforementioned provision shows that it has been mandated upon the Court to release a person who is apparently a juvenile on bail with or without surety, howsoever heinous the crime may be and whatever the legal or other restrictions containing in the Cr. P. C. or any other law may be. The only restriction is that if there appear reasonable grounds for believing that his release is likely to bring him into association with any known criminal or expose him to any moral, physical or psychological danger or his release would defeat the ends of justice, he shall not be so released."

In the case Sanjay Chaurasia v. State of U. P. and another:2006 (4) ALJ 353 it has been laid down by this court as under:

"10. In case of the refusal of the bail, some reasonable grounds for believing above-mentioned exceptions must be brought before the Courts concerned by the prosecution but in the present case, no such ground for believing any of the above-mentioned exceptions has been brought by the prosecution before the Juvenile Justice Board and Appellate Court. The Appellate Court dismissed the appeal only on the presumption that due to commission of this offence, the father and other relatives of other kidnapped boy had developed enmity with the revisionist, that is why in case of his release, the physical and mental life of the revisionist will be in danger and his release will defeat the ends of justice but substantial to this presumption no material has been brought before the Appellate Court and the same has not been discussed and only on the basis of the presumption, Juvenile Justice Board has refused the Bail of the revisionist which is in the present case is unjustified and against the spirit of the Act."

In the case of Ravi-Ul-Islam v. State (NCT, Delhi): 2007 Cr.L.J. 612 it has been held as under:- -

"6. Looking at the Social Investigation Report, it is difficult to come to the conclusion that the release of the juvenile would bring him into association of any known criminal or expose him to any physical or moral danger or his release would defeat the ends of justice. Accordingly, in view of the specific provisions of Section 12 of the said Act, the petitioner would be clearly entitled to be released on bail."

At the cost of repetition it can be summerized that there is no adverse report or material that minor cannot be improved under guardianship of his father. Even the report of the District Probation Officer, Muzaffarnagar is not supported by any material as to how minor will fall in company of bad elements if released on bail. The observation of the District Probation Officer in absence of any supporting material becomes bald and vague. Consequently, the same is to be ignored in a situation when father of the delinquent juvenile promises to work for improvement of his son.

In view of the above, the prayer for bail made on behalf of the delinquent minor is liable to be allowed.

Consequently, the order impugned dated 01.11.2013 passed by the Juvenile Justice Board on the bail application of the delinquent juvenile in conflict with law and the order impugned dated 27.11.2013 passed by the learned Sessions Judge, Muzaffar Nagar in Criminal Appeal No.103 of 2013 are hereby set aside and the prayer made for grant of bail to the delinquent juvenile through his father who is natural guardian Vijaypal son of Fattan is allowed.

Let the revisionist Ashu Kumar through his natural guardian/father be released on bail in Case No.10/11 of 2013 State Vs. Ashu Kumar arising out of Case Crime No.18 of 2013 under Sections 376(2) (g), 364 I.P.C. Police Station Civil Lines, District Muzaffarnagar, on his father Vijaypal furnishing a personal bond with two solvent sureties of his relatives each in the like amount to the satisfaction of the Juvenile Justice Board, Muzaffarnagar with an undertaking that in case the delinquent juvenile is released on bail and is given in his custody he will not create any situation which will bring the delinquent juvenile into association with any known criminal or expose to him moral, physical and psychological danger or any situation when the delinquent juvenile may repeat the offence in question and he will work for improvement of the delinquent juvenile.

Accordingly, the instant revision is allowed.

Let a copy of this order be certified to the Juvenile Justice Board, Muzaffarnagar at the earliest.

Order Date :- 26.5.2015

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