Ankur (Minor) vs State Of U.P. & Another
2018 Latest Caselaw 167 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 53								A.F.R.
 

 
Case :- CRIMINAL REVISION No. - 2909 of 2017
 

 
Revisionist :- Ankur (Minor)
 
Opposite Party :- State Of U.P. & Another
 
Counsel for Revisionist :- Rajeev Sawhney
 
Counsel for Opposite Party :- G.A.,Ronak Chaturvedi
 

 
Hon'ble J.J. Munir,J.

1. Heard Sri Rajeev Sawhney, learned counsel for the revisionist, Sri Kamal Singh Yadav, learned AGA along with Sri Abhinav Tripathi appearing for the State and Sri Ronak Chaturvedi, learned counsel for opposite party no.2.

2. This is a revision under Section 102 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as the ''Act') on behalf of Ankur, a juvenile/ child in conflict with law through his natural guardian and father Jagvir Singh assailing a judgment and order dated 04.08.2017 passed by Sri Subhash Chand, the learned Sessions Judge, Bijnor in Criminal Appeal no.30 of 2017 dismissing the said appeal preferred from an order dated 20.07.2017 passed by the Juvenile Justice Board, Bijnor in Misc. Case no.91 of 2015, State vs. Ankur (arising out of Case Crime no.696 of 2015), under Sections 302, 307, 120B IPC and Section 7 of the Criminal Law Amendment Act, Police Station Kotwali City, District Bijnor, refusing second bail to the revisionist.

3. The facts giving rise to the First Information Report are that a first information was lodged by one Anuj Kumar that in the background of animosity between his family and the family of Dheer Singh, a native of his village on 15.08.2015 at 7.00 in the morning hours his father Aman Singh had gone to attend the flag hoisting at the Janta Inter College, Dhokalpur on the Independence Day, where Jagvir Singh alias Pappu, Ankur and the two unknown associates were present at the venue. The persons aforesaid abused his father who forbade them from abusive language, in immediate response Jagvir @ Pappu shot his father by a pistol, which hit his father on the head, as also did Ankur. The shot fired by Ankur hit one Hemendra, a companion of Aman Singh. The incident is said to have been witnessed by Ashok Kumar, Hukam Singh, Harpal Singh, Devendra and many others present. The informant's father died on the spot and the condition of Hemendra was said to be serious. It was alleged that in the incident, aforesaid Dheer Singh @ Joly was also said to be involved.

4. The said FIR was registered as Case Crime no.696 of 2015, under Sections 307, 302, 120B IPC and Section 7 of the Criminal Law Amendment Act, Police Station Kotwali City, District Bijnor against Jegvir Singh, Ankur (the revisionist) and Dheer Singh. After investigation, charge sheet was filed against each of the nominated accused.

5. An application was made on behalf of the revisionist before the Juvenile Justice Board seeking a declaration that he was a juvenile and be dealt as such. The Juvenile Justice Board by their order dated 12.02.2016 after hearing the parties and examining the record held the revisionist to be a juvenile aged about 16 years 3 months and 10 days on the date of occurrence. On the foot of the said order the revisionist's mother made an application to the Juvenile Justice Board in the present crime for his release on bail alleging that he had been implicated on account of hostilities between families and there is no evidence against him; that the revisionist bears a good character; that the revisionist would not misuse the liberty of bail; that she has full control over her son; and, that the juvenile be given into her custody. The said application for bail came to be rejected by an order of the Juvenile Justice Board dated 20.07.2017.

6. The revisionist went up in appeal to the learned Sessions Judge, Bijnor from the order of the Juvenile Justice Board declining bail. The appeal aforesaid being Criminal Appeal no.30 of 2017 was heard and dismissed by the learned Sessions Judge vide his order dated 04.08.2017. Aggrieved the present revision has been filed under Section 102 of the Act.

7. It is noticed that a bail application had also been made earlier to the Juvenile Justice Board, which after hearing parties and considering the report of the District Probation Officer came to be rejected by an order dated 09.03.2016. From that order rejecting the first bail plea by the Juvenile Justice Board vide order dated 09.03.2016, Criminal Appeal no.12 of 2016 was filed to the Sessions Judge, that was dismissed also vide an order dated 07.04.2016. Aggrieved by dismissal of that appeal, Criminal Revision no.1103 of 2016 was preferred to this Court, that came to be dismissed by judgment and order dated 21.04.2016. Now the revisionist has made a second application for bail through his mother on grounds that apart from the basic foothold of innocence, false implication, the revisionist has done a 2/3rd of a period of the maximum detention permissible under the Act for a juvenile. Also, urged as a fresh ground for the fact that in the Social Investigation Report from the District Probation Officer and the certificates in regard to academic qualification as also character certificate issued by the concerned college authorities, show that the revisionist bears good character. It was also urged that a number of applications by persons of the locality have been given to the District Probation Officer that are part of the record, which show that there is no apprehension to the society in regard to commission of any crime by the revisionist in the event of release.

8. The learned Sessions Judge in appeal has discarded all these fresh grounds by answering them against the revisionist in the manner that so far as the juvenile being a meritorious student or the issue of his good character is concerned, the said ground was available at the time when the first bail application and its appellate procedure went through. As such, the said ground even if not taken at that time, cannot be urged now. So far as the 81 signatories who have submitted applications to the District Probation Officer that there is no apprehension to the society in case the juvenile is released on bail, in the opinion of the learned Judge was of no relevance because in the previous report the District Probation Officer had said that many persons of the locality have shown their apprehension in case the juvenile Ankur is released on bail; there is likelihood that he would further commit an offence and his release would bring him in association of hardened Criminal Hemendra alias Gopi. It has further been said by the learned Sessions Judge that in the present Social Investigation Report, the District Probation Officer has not mentioned that the juvenile will no longer be in association with hardened criminal Hemendra alias Gopi. He has further opined that in the previous report of the District Probation Officer, stand which is adverse to the juvenile, according to the learned Judge, there is a subsisting apprehension that in the event of release the juvenile would come into association with hardened criminal called Hemendra alias Gopi, who has been convicted of some offences and that would certainly expose the juvenile to moral, psychological and physical danger. The learned Judge in appeal has refused to accept the plea for liberty on account of the juvenile undergoing more than 2/3rd period of detention permissible for him on ground that trial of the juvenile is pending at this stage, and, his release would defeat the ends of justice for reason that on being released he may suborn witnesses.

9. This Court has carefully considered the changed circumstances under which the present plea for bail has been brought. The renewed plea has effectively been dealt with by the Appellate Court, and, therefore, this Court intends to deal with the plea with reference to reasoning in the judgment of the Appellate Court. However, the Juvenile Justice Board hardly says anything to be dealt with.

10. The contention of the learned counsel for the revisionist that the Appellate Court went wrong in not taking into account fresh ground based on academic record and character certificates from the college authorities, where juvenile studies on ground that these were available when the first bail plea was argued is fallacious, inasmuch as, the principles governing the plea for bail by a juvenile are generically different from a bail plea on behalf of an adult offender. The plea for bail on behalf of an adult offender in case of non-bailable offence is generically differentiated from a bail plea on behalf of a juvenile going by the terms of the well defined statutory provisions under which the bail plea of an adult and that of a juvenile are to be considered. The bail plea of an adult in a non-bailable offence, particularly, one punishable with death or a life term, as is the case here, would substantially be governed by the provisions of Section 439 Cr.P.C. The terms of Section 439 Cr.P.C. that confer wide discretion on the High Court or the Court of Sessions to grant of bail certainly do not make bail in non-bailable offences, particularly, in those cases that are exclusively triable by the Court of Sessions or punishable with imprisonment for life, a matter of right; in fact, for an adult offender bail in a non-bailable offence is not a matter of right. That is the law about adult offenders and their right to be admitted to bail is, therefore, utterly dependent upon the discretion of the learned Sessions Judge or the High Court, of course, to be exercised along with settled lines in relation to different offences with authorities that somewhat guide this otherwise absolute discretion.

11. By contrast, in case of a juvenile offender, the provisions of Section 12(1) of the Act provides for bail as a matter of right to the juvenile or child in conflict with law notwithstanding anything contained in the Code of Criminal Procedure or any other law for the time being in force requiring him to be released on bail with or without surety or placed under the supervision of a Probation Officer or under the care of any fit person. The non obstante clause in Section 12(1) of the Act, thus, makes bail a matter of right to the juvenile as a rule. The proviso to Section 12(1) of the Act, however, carves out three distinct exceptions, where bail may be denied. These are:-

1. Where there are reasonable grounds for believing that the release is likely to bring the child into association with any known criminal

2. The release is likely to expose the child to moral, physical or psychological danger

3. The release of the child would defeat the ends of justice.

12. This being the essential difference between the right of an adult to bail in non-bailable offences and that of a juvenile under Section 12(1) of the Act, the principles governing grant of bails pending trial to an adult cannot be applied to a plea for bail pending trial on behalf of the juvenile. A fortiori the principles governing a plea for second bail applicable to an adult would not apply in the case of a juvenile. This Court has said earlier in Juryodhan @ Vijay Sagar vs. State of U.P.1 that it is trite law that howsoever strong a case on merits prima facie against a child in conflict with law, unless it falls under one or the other disentitling grounds in the proviso to Section 12(1) of the Act, bail cannot be denied with reference to the merits of the charge/ gravity of the offence and evidence of his involvement. But the converse is not true. In case where the prosecution case against a child in conflict with law is apparently flimsy, based on weak or remote evidence or not made out at all, it is not that it would be assumed that the prosecution have a case against a child to authorise his detention and then the Court has to undertake an exercise to examine whether his case falls under one or the other disentitling grounds. Thus, the law for the child in conflict with law where on the charge in the case the evidence against him is weak, the merits of it would always avail him. It is only where the case against the child is strong, the charge heinous and evidence damning that the Court would be obliged to look whether the case of the child falls in one or the other disentitling exceptions. If still, his case does not fall in one or the other disentitling exceptions, a child in conflict with law, as a general rule would be entitled to bail or release, in the manner specified by Section 12(1) of the Act. There being so much of difference in the parameters of law on which a bail of an adult and a child are to be assessed, the rule regarding availability of a fresh ground which though available at the time of consideration of a first bail plea, but not availed cannot be availed while considering the second plea for bail, cannot be applied in the case of bail to a juvenile. The said principle about a fresh ground urged, or constructively urged, when the first bail plea was considered, has been developed in the context of the law governing consideration of bail pleas under Section 439 Cr.P.C. It would have no application in the very different statutory context of Section 12(1) of the Act.

13. Here the Court would clarify that the principle that in case of a juvenile, bail in non-bailable cases is the rule with exceptions to that being carved out in the proviso to Section 12(1) of the Act does not mean that the right of a juvenile to bail is indefeasible, unqualified or not at all referable to the gravity of the offences committed by him. In fact, the third exception postulated in the proviso to Section 12(1) of the Act, that speaks about one of the grounds of denial to be, where release on bail would "defeat the ends of justice" is niche enough to bring in the consideration of gravity and heinous nature of the charge in the case of a juvenile too. But the consideration about gravity of the charge and the case against a juvenile have to be judged with a reference to the clause that provides for "defeat to ends of justice", in case bail were granted. Therefore, the perspective to look at the merits of the charge and the prima facie case, in the case of an adult, and, a juvenile, would be essentially and generically different. In this connection the decision of this Court in Mangesh Rajbhar vs. State of U.P. and another2 may be gainfully referred:-

"27. It seems thus that the suggestion of the learned counsel for the revisionist that bail to a juvenile or more properly called a child in conflict with law can be denied under the last ground of the proviso to Section 12 ejusdem generis with the first two and not with reference to the gravity of the offence, does not appear to be tenable. The gravity of the offence is certainly relevant though not decisive. It is this relevance amongst other factors where gravity of the offence committed works and serves as a guide to grant or refuse bail in conjunction with other relevant factors to refuse bail on the last ground mentioned in the proviso to Section 12 (1) of the Act, that is to say, on ground that release would "defeat the ends of justice".

14. In the opinion of this Court, therefore, the Appellate Court committed an error in applying the principle of non-availability of a bail plea that could be urged at the time when the first bail application was considered, but was not taken, in the context of a juvenile's bail. A juvenile being possessed of a right to bail even in non-bailable offences may show on a second or subsequent plea that his case does not fall into one or the other disentitling exceptions. That is all that he is required to show; he can do that any time, on any instance or subsequent motion for bail which has to be considered on its merits. Thus the Learned Sessions Judge was in error in not considering the ground urged by the revisionist based on his good academic records and character certificates.

15. Likewise, the finding of the learned Sessions Judge that believes the first Social Investigation Report and discards the second, also ignores the fact that the second report is based on a changed and contemporary perception about the juvenile over a period of 2 years, and, is further supported by a broad based written opinion of 81 persons from the locality/ community wherefrom the juvenile/ child in conflict with law hails. The earlier report of the District Probation Officer may not be based on so broad based a survey of opinion. There is also a possibility of an immediate expression of irrational public opinion proximate in point of time to the event, adverse to the person, who was blamed for the offence at that time. There is also a possibility that at the relevant time the District Probation Officer might have written a casual report, but for the present his report is supported with written opinion of 81 persons of the community. The learned Sessions Judge is, therefore, not right in depending upon the first report of the District Probation Officer and discarding the second report on this count.

16. Also, the inference that since the second report does not speak anything about the association of the juvenile with hardened criminal Hemendra alias Gopi means that the likelihood of such an association or influence mentioned in the first report holds good, is also flawed. Non-mentioning of the possibility of the likelihood of the juvenile being brought into association with any known criminal cannot lead to an inference against the juvenile on this count, based on a previous report. If the learned Judge had some doubt on this score, he could and should have called for a further specific report from the District Probation Officer with regard to likelihood, upon release of the juvenile coming into association with Hemendra alias Gopi. Thus, the inference drawn on this count by the learned Sessions Judge does not commend itself to the Court.

17. The current perspective to assess the plea for bail by the revisionist is conditioned by the updated Social Investigation Report and additional material that has been brought on record to show that the revisionist is a meritorious student and bears a good character as certified by his school. Then there is also a definitive evidence of 81 signatories, who have submitted applications to the District Probation Officer, that there is no apprehension to the society, in case the juvenile were released on bail. There is also then the very real issue that the juvenile has done, as of date, about 2 years and 10 months in jail; he is incarcerated since 17.08.2015. Looking to all these factors, the outlook to assess the revisionist's bail plea stands completely changed. The learned Sessions Judge after noticing that the revisionist has suffered a two-thirds of the total period of detention permissible under the law, has in the opinion of this Court not rightly denied him the concession of bail. As of now, the revisionist has just about a month and a half of the maximum period of detention permissible for him under the Act.

18. This Court cannot gloss over another finding of the learned Sessions Judge that in case the revisionist were released on bail, he may suborn witnesses. During hearing of this matter, this Court did not find any material that may suggest that the revisionist, the juvenile, about whom members of the community in good number have expressed favourable opinion in writing to the District Probation Officer would have the propensity let alone the capacity to suborn witnesses. The opinion of the learned Sessions Judge is not based on any evidence. It is no more than an ipse dixit of the learned Judge.

19. Considering the overall facts and circumstances, this Court is of the considered opinion that the orders impugned are not sustainable and the same deserve to be set aside and reversed.

20. In the result, this revision succeeds and is allowed. The impugned order dated 04.08.2017 passed by the learned Sessions Judge, Bijnor in Criminal Appeal no.30 of 2017 and the order dated 20.07.2017 passed by the Juvenile Justice Board, Bijnor in Misc. Case no.91 of 2015, State vs. Ankur (arising out of Case Crime no.696 of 2015), under Sections 302, 307, 120B IPC and Section 7 of the Criminal Law Amendment Act, Police Station Kotwali City, District Bijnor, are hereby set aside and reversed. The Bail Application filed on behalf of the revisionist stands allowed.

21. Let the revisionist, Ankur through his natural guardian/ his father Jagvir Singh be released on bail in Case Crime no.696 of 2015, under Sections 302, 307, 120B IPC and Section 7 of the Criminal Law Amendment Act, Police Station Kotwali City, District Bijnor on his father furnishing a personal bond with two solvent sureties of his relatives each in the like amount to the satisfaction of the Juvenile Justice Board, Bijnor subject to the following conditions:

(i) that the natural guardian/ father Jagvir will furnish an undertaking that upon release on bail the juvenile will not be permitted to go into contact or association with any known criminal or allowed to be exposed to any moral, physical or psychological danger and further that the father will ensure that the juvenile will not repeat the offence.

(ii) that the father will further furnish an undertaking to the effect that the juvenile will pursue his study at the appropriate level which he would be encouraged to do besides other constructive activities and not allowed to waste his time in unproductive and excessive recreational pursuits.

(iii) The revisionist and his father Jagvir will report to the District Probation Officer on the first Monday of every calendar month commencing with the first Monday of August, 2018 and if during any calendar month the first Monday falls on a holiday, then on the following working day.

(iv) The District Probation Officer will keep strict vigil on the activities of the revisionist and regularly draw up his social investigation report that would be submitted to the Juvenile Justice Board, Bijnor on such periodical basis as the Juvenile Justice Board may determine.

Order Date :- 24.4.2018

Anoop