Mohd. Shakil Khan (Juvenile) vs State Of U.P.
2017 Latest Caselaw 241 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR                                                              RESERVED                                                            
 

 
Court No. - 22
 

 
Case :- CRIMINAL REVISION No. - 3591 of 2015
 

 
Revisionist :- Mohd. Shakil Khan (Juvenile)
 
Opposite Party :- State Of U.P.
 
Counsel for Revisionist :- Sushil Kumar Pandey,Ansar Ahmad,Shailendra Kumar Tripathi
 
Counsel for Opposite Party :- Govt.Advocate
 

 
        Connected with
 

 
Case :- CRIMINAL REVISION No. - 3592 of 2015
 

 
Revisionist :- Mohd. Shakil Khan (Juvenile)
 
Opposite Party :- State Of U.P.
 
Counsel for Revisionist :- Sushil Kumar Pandey,Ansar Ahmad,Shailendra Kumar Tripathi
 
Counsel for Opposite Party :- Govt.Advocate
 

 
Hon'ble Amar Singh Chauhan,J.

Sri Ansar Ahmad, learned counsel for revisionist and learned A.G.A. are present.

The revisionist, Mohd. Shakil Khan (Juvenile), has preferred this Criminal Revision No. 3591 of 2015 against the judgment and order dated 17.09.2015 passed by the learned Additional Sessions Judge, Court No. 1, Muzaffarnagar in Criminal Appeal No. 87 of 2015 as well as order dated 21.08.2015 passed by learned Principal Magistrate, Juvenile Justice Board, Muzaffarnagar arising out of Case Crime No. 547 of 2015 under Section 8/16 of Narcotic Drugs and Psychotropic Substances Act, 1985, Police Station Nai Mandi, District Muzaffarnagar by which the prayer of the bail has been rejected by both the courts' below.

The revisionist, Mohd. Shakil Khan (Juvenile), has also preferred this Criminal Revision No. 3592 of 2015 against the judgment and order dated 17.09.2015 passed by learned Additional Sessions Judge, Court No. 1, Muzaffarnagar in Criminal Appeal No. 86 of 2015 as well as order dated 21.08.2015, passed by learned Principal Magistrate, Juvenile Justice Board, Muzaffar nagar, arising out of Case Crime No. 548 of 2015 under Section 18/20 of Narcotic Drugs and Psychotropic Substances Act, 1985, Police Station Nai Mandi, District Muzaffar Nagar, by which the prayer of the bail has been rejected by both the courts' below.

Since both the connected revisions involved the same point of determination, therefore, they are being heard and decided together by a common order with the consent of the parties.

The brief facts giving rise to the present revision is that on 22.06.2015 when police party was on patrolling duty and reached Rathedi by-pass they saw that 45 persons were standing on the corner of by-pass, suddenly seeing the police they started running. The police apprehended three persons while their companion succeeded in fleeing from there. On interrogation, these persons disclosed that they were having charas and cocaine. On this information, the SHO Nai Mandi and the Circle Officer also reached there. Among the persons apprehended, on being searched as per rule 450 gm cocaine was recovered from the bag of the revisionist. Besides this, 200gm charas was also recovered from the pocket of his pant. Similarly 200 grams charas was recovered from the possession of the co-accused. During trial the revisionist Mohd. Shakil Khan moved an application to declare him as a juvenile in conflict with law. After inquiry, the revisionist Mohd. Shakil Khan was declared juvenile in conflict with law by order dated 14.08.2015. After declaration of his juvenility, the revisionist Mohd. Shakil Khan moved bail application for his release, which was rejected by the Juvenile Justice Board against which an appeal was filed before the Sessions Court which was also rejected by the Additional Sessions Judge, Court No. 1, Muzaffarnagar.

Admittedly, the revisionist is a juvenile and special provisions are there for the bail of a juvenile. Learned A.G.A. did not raise any dispute with regard to the aforesaid facts.

Feeling aggrieved, this revision was filed by the revisionists/accused.

Heard Sri Ansar Ahmad, learned counsel for the revisionist, learned Additional Government Advocate for the State and perused the record.

Learned counsel for the revisionist submitted that the order passed by the Court below as well as Juvenile Justice Board are illegal and arbitrary, which are based on mere surmises and conjunctures. The judgment and order impugned have been passed by the learned Court below by misleading the evidence on record as such the judgments and orders are based on wholly perverse findings and have been passed without considering arguments advanced from the side of the revisionist. It is obvious that it was not the case in which the application of revisionist could have been rejected but the learned Courts below have committed manifest error of law as well as fact and passed the orders rejecting the application for releasing him on bail in absolutely improper manner and are against the provisions of Section 12 of Juvenile Justice (Care and protection) Act 2000 and its Rule 2007. It is well settled law that gravity of offence will not be considered while deciding the bail prayer of a juvenile. The guardian of the revisionist undertakes to keep the revisionist with full care and control, he will not permit him to involve any illegal act.

Learned counsel for revisionist relied on case law of Praveen Kumar Maurya @ Praveen Maurya vs. State of U.P., 2010 Law Suit (All) 1108 in which it has been held that the bail of juvenile only be refused if any one of the ground exist as enumerated under section 12 of the Juvenile Justice (Care and Protection of children) Act 2000. The ground of gravity of the offence is not to be considered. Further relied on case law in Ram Pal @ Data Ram vs. State of U.P. 2012, Law Suit (All) 2628 in which same ratio was reiterated by another Bench of this court.

Before adverting the claim of the parties, it is necessary to quote the Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2000 which reproduce as below:

"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 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 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.

(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 inquiry regarding him as may be specified in the order."

In view of the aforesaid provision, the bail application of the juvenile can be rejected only on the existence of the aforementioned grounds enumerated in Section 12 of the Juvenile Justice Act.

Apart from it in the case of Amit Kumar vs. State of U.P. [2010 (71) ACC 209 (Alld)] and Naurang (minor) vs. State of U.P. [2010 (71) ACC 255 (Alld), this Court has expressed the similar view and has granted bail to the juvenile offender in heinous offence. Seriousness of offence is no ground to reject the bail to a juvenile.

If we go by the statutory mandate, bail in a case of juvenile in conflict with law, is a general rule where as refusal is exception such refusal has also be in consonance with the grounds mentioned in Section 12, of Juvenile Justice (Care and Protection of Children) Act, 2000. The seriousness of the offence is also no ground to reject the bail. However from the provisions of the Act as well as from the various case law, it is also clear that bail to the juvenile can be denied if there appears reasonable grounds for believing that the release is likely to bring the juvenile 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 the present case the District Probation Officer in his report has stated that the reasons of juvenile are that there are lack of parental control over the juvenile and also the company with bad elements. The District Probation Officer has recommended that the juvenile may be given opportunity to reform himself and his matter may be dealt with leniency. The Juvenile Board has observed that if the juvenile was released on bail, it may bring him into association with known criminals and expose him to moral, physical or psychological danger, which would also defeat the ends of justice.

In the instant case the quantity of cocaine shown recovered from the juvenile comes under commercial quantity. In fact, recovery shown from the juvenile is more than four times of the commercial quantity. From the quantity of recovered cocaine, the possibility of this involvement in some racket of drug trafficker cannot be ruled out. Besides this 200 gm Charas also said to be recovered from the possession of the revisionist. Though gravity is not a ground to reject bail but the way the revisionist was carrying huge quantity of cocaine support the conclusion of the lower court that in case bail is granted it would defeat the ends of justice.

In a recent judgment given in the case of Om Prakash Vs. State of Rajasthan and another [(2012) 5 SCC 201], Hon'ble Apex Court has cautioned the courts to be more sensitive in dealing with juvenile in cases of serious nature like sexual molestation, rape, gang-rape, murder, drug, trafficking etc. Relevant extract of the judgment is being reproduced below for reference:-

"The Juvenile Justice Act was enacted with a laudable object of providing a separate forum or a special court for holding trial of children/juvenile by the juvenile court as it was felt that children become delinquent by force of circumstance and not by choice and hence they need to be treated with care and sensitivity while dealing and trying cases involving criminal offence. ......But when an accused commits a grave and heinous offence and thereafter attempts to take statutory shelter under the guise of being a minor, a casual or cavalier approach while recording as to whether an accused is a juvenile or not cannot be permitted as the courts are enjoined upon to perform their duties with the object of protecting the confidence of common man in the institution entrusted with the administration of justice." Hence, while the courts must be sensitive in dealing with the juvenile who is involved in cases of serious nature like sexual molestation, rape, gang rape, murder and host of other offences, the accused cannot be allowed to abuse the statutory protection by attempting to prove himself as a minor.".......'statutory protection of the Juvenile Justice Act is meant for minors who are innocent law-breakers and not accused of matured mind who use the plea of minority as a ploy or shield to protect himself from the sentence of the offence committed by him, otherwise would amount to subverting the course of justice'. The Juvenile Justice Act which is certainly meant to treat a child accused with care and sensitivity offering him a chance to reform and settle into the mainstream of society, the same cannot be allowed to be used as a ploy to dupe the course of justice while conducting trial and treatment of heinous offences. This would clearly be treated as an effort to weaken the justice dispensation system and hence cannot be encouraged."

Consequently, the offence like rape with child followed by murder, anti-national/sedition, drug trafficking and other similar acts etc. would be the offences which reflect the criminal mind-set of the offender, as such, any discretion under Section 12 of the Act to such a person would amount to defeating the ends of justice. Granting bail to such a juvenile will not only expose him to moral, physical and psychological danger but would also lead to defeat of the ends of justice.

In view of above, juvenile is not entitled to be released on bail under Section 8/16 and 18/20 N.D.P.S. Act. Consequently, no illegality has been committed by passing the impugned orders by which bail prayer was rejected.

Having considered the submissions of legality, propriety and correctness of the order impugned, I am of the view that the revision is liable to be dismissed.

The revision is dismissed as being devoid of merit.

There is no order for cost.

Order Date :- 08.05.2017

Arti Sharma