Dharmraj vs State Of U.P. And Another
2018 Latest Caselaw 1764 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
Court No. - 53								 A.F.R.
 

 
Case :- CRIMINAL REVISION No. - 1857 of 2017
 

 
Revisionist :- Dharmraj
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Revisionist :- Salil Kumar Rai,Rudra Kant Mishra
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble J.J. Munir,J.

1. Perused the office report dated 17.08.2017, which shows that notice issued to opposite party no.2 vide order dated 28.06.2017 has been personally served. Service is held to be sufficient. No one has put in appearance on behalf opposite party no.2. However, a counter affidavit has been put in on behalf of the State, to which the revisionist has filed a rejoinder.

2. This Criminal Revision has been preferred by Dharmraj, a child in conflict with law under Section 102 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereafter referred to as the ''Act') assailing a judgment and order passed by Sri Sanjay Kumar Dey, the then Additional Sessions Judge, Court no.4, Maharajganj, dated 12.04.2017 in Criminal Appeal no.17 of 2017, dismissing the revisionist's appeal under Section 101 of the Act from an order of the Juvenile Justice Board, Maharajganj, dated 14.02.2017 made in Case Crime no.326 of 2016, under Sections 302, 506 IPC, Police Station Shyamdeuravan, District Maharajganj, rejecting the revisionist's plea for bail pending trial.

3. The facts giving rise to this revision are recapitulated hereinafter.

4. According to the prosecution case a First Information Report was lodged by one Kaushi Devi through an application under Section 156(3) Cr.P.C. registered on 19.09.2017 alleging therein that the informant was a native of Village Bijoul, Police Station Shyamdeuravan, District Maharajganj; that the informant's daughter Rekha aged about 16 years had gone to the place of the informant's parents situate at Village Takia, Police Station Khorabar, District Gorakhpur along with her, where Dharmraj son of Millan Sawhani struck a conversation with her daughter; that for Rekha the place being her maternal grand parents' home, Dharmraj last mentioned was familiar; that the informant came back home along with her daughter, but Dharmraj called Rekha over her mobile and pressed her to marry him; that Rekha refused the proposal, whereupon Rekha shared with the informant the fact that Dharmraj was cutting vulgar jokes and threatening to marry her by force; that when she refused, he had held out threats; that thereupon the informant contacted her brother Ramdeen telephonically and shared her concern about Dharmraj with him; that on 01.04.2016 at about 11.00 a.m., Dharmraj (revisionist) arrived at the informant's place and catching hold of Rekha said that she should marry him and upon Rekha's refusal, Dharmraj extended threat of doing her to death; that the aforesaid incident happened when the informant was away to the fields, but was witnessed by one Sugreev son of Ramdeen and Kavaraha wife of Gangadeen; that little later the informant arrived home and went inside Rekha's room to find her lying dead; that Dharmraj escaped on his motorcycle who was seen by natives of the village; that the informant gave information about the occurrence to the police, who got Rekha's body subjected to autopsy. Despite information given to the Superintendent of Police, a First Information Report was not registered. It was through an application made to the Chief Judicial Magistrate and under his orders dated 05.07.2016 that the information came to be registered in the present case which is ex facie a heinous crime, a good five and half months after the occurrence.

5. It appears that the revisionist, Dharmraj was arrested and remanded to custody on 29.11.2016 and is in jail ever since. After investigation a charge sheet was filed on 09.12.2016, on the basis of which cognizance has been taken. The revisionist made an application to the Juvenile Justice Board, Maharajganj seeking to be declared a juvenile. He relied in support of his claim to juvenility on a High School certificate, a copy of which was filed before the Board in support of his claim. The date of birth recorded in the High School certificate of the revisionist is 10.07.2000. The Juvenile Justice Board by their order dated 10.01.2017 accepted the plea and held the revisionist to be a juvenile.

6. A Social Investigation Report was submitted by the District Probation Officer on 28.01.2017, a copy of which is annexed as Annexure 4 to the affidavit in support of this revision.

7. The revisionist filed an application for bail to the Juvenile Justice Board, that came to be registered as Bail Application no.15 of 2015, State vs. Dharmraj, relating to Case Crime no.326 of 2016, under Sections 302, 506 IPC, Police Station Shyamdeuravan, District Maharajganj before the Board. The Board by their order dated 14.02.2017 proceeded to reject the revisionist's application for bail. The revisionist challenged the said order of the Board in order to win back his liberty by moving the learned Sessions Judge in Appeal under Section 101 of the Act. His appeal was registered before the Sessions Judge, Maharajganj as Criminal Appeal no.17 of 2017. This appeal came up for determination before the learned Additional Sessions Judge, Court no.4, Maharajganj on 12.04.2017 and was ordered to be dismissed.

8. Aggrieved the revisionist has preferred the present revision.

9. Heard Sri Rudra Kant Mishra, learned counsel for the revisionist and Sri Shyam Dhar Yadav, learned A.G.A. along with Sri Avanish Shukla, learned counsel appearing for the State.

10. A perusal of the order passed by the Juvenile Justice Board does not do much service to the cause as a perusal of the same shows that after a verbatim reproduction of the provisions of Section 12 of the Act all that the Board say is that the Social Investigation Report and the report of the police show that in case the revisionist is released, it would expose him to physical, psychological and moral danger; that it would bring him in contact with known criminals; and, that the ends of justice would defeated in case of his release. The Board have hardly said anything that would qualify for a reasoned opinion much less an opinion expressed by a court or judicial authority deciding upon the liberty of a citizen, and, a child in conflict with law at that. For reason's sake all that has been said by the Juvenile Justice Board, in the opinion of this Court, is no more than a paraphrasing of the three grounds embodied in the proviso to Section 12(1) of the Act, on the basis of which bail may be denied to a child in conflict with law. There is absolutely no discussion about the facts of the case in hand relevant to the three disentitling grounds in the proviso to Section 12(1) of the Act. This Court has no hesitation in holding that the order passed by the Juvenile Justice Board hardly qualifies for adjudication in accordance with the statutory duty of the Board to deal with a bail plea.

11. The learned Sessions Judge in appeal has dealt with the matter on foot of the reasoning that a prima facie case of murder at the hands of the revisionist is made out and thereafter tested the bail plea in accordance with the parameters prescribed by proviso to Section 12(1) of the Act. There is ample reference to the three grounds on which bail may be denied to a child in conflict with law in the judgments of the two courts below; therefore, the same are not being reproduced again. The learned Sessions Judge has reasoned that so far as the first ground to disentitle the revisionist to bail is concerned, that is to say, the possibility of the child in conflict with law coming into contacts with known criminals, there is no evidence to that effect on record. The learned Judge has also recorded the fact that the revisionist has no criminal history and the Social Investigation Report submitted by the District Probation Officer does not carry any evidence to support the conclusion that there are chances of the revisionist coming into contact with known criminals. This disentitling ground the learned Sessions Judge has recorded in the order impugned, is not made out. This Court, for the reasons that have weighed with the learned Sessions Judge is in agreement with the view taken by the Appellate Court. The learned Sessions Judge on the second parameter on which bail could be denied, that is to say, the likelihood of exposure to physical, psychological and moral danger in the event of release has expressed an opinion that the Social Investigation Report may not be wrong in saying that the parents/ guardians have scant control over the juvenile, inasmuch as, the conduct of the juvenile in proceeding to the deceased's home and pressurizing her to marry him speaks for itself. The learned Judge in appeal has opined that in case the parents had exercised some control, the juvenile upon refusal by the deceased to the marriage proposal would not have gone over to the deceased's home and reiterated his proposal. For the present, this Court would reserve expression of opinion on this finding recorded by the learned Judge until a little later part of this order.

12. The learned Judge in appeal on the third parameter envisaged by the proviso to Section 12(1) of the Act, that is to say, the result of release 'would lead to the ends of justice being defeated' has expressed opinion to the effect that the documentary evidence showed that the revisionist exerted pressure upon the deceased to marry him and when the deceased refused, he threatened her and further in order to carry out his threat, he proceeded to the deceased's home on his motorcycle, caught hold of her and reiterated his proposal. When the deceased again declined to accept the revisionist's proposal, he killed her. From the said sequence of events, the learned Judge in appeal has inferred that the actions of the juvenile show maturity and betray a criminal mind set. In case a child in conflict with law of the kind that the revisionist is, is set free on bail, it would, indeed, lead to ends of justice being defeated as it would have a negative impact on the society. The learned Judge has, therefore, opined that on the second and third grounds carried in the proviso to Section 12(1) of the Act, the revisionist is not entitled to bail. This Court would again reserve opinion on this part of the finding by the Judge in appeal until a later part of this judgment.

13. Before this Court, learned counsel for the revisionist has also generally argued on the premise that the prosecution case is prima facie established against the revisionist and his case has to be screened with reference to the three parameters embodied in the proviso to Section 12(1) of the Act, on the basis of which above bail may be denied and has urged that none of those disentitling grounds obtain in the present case.

14. Generally, to substantive his case, the learned counsel for the revisionist Sri Rudra Kant Mishra has pointed out that the revisionist at the time of occurrence has been held to be aged 15 years and 9 months, that is to say, below the age of 16 years. He has been charged with offences punishable under Sections 302, 506 IPC on the basis of circumstantial evidence without there being an eye witness to the occurrence. It is further emphasized that the revisionist has done 17 months of institutional incarceration (which by now would have grown to a time period of about 19 months), and, he or his family have no criminal history. The Social Investigation Report does not show any such case of association with a known criminal or circumstance that may lend support to the conclusion that in case of release the revisionist would be exposed to physical, psychological or moral danger or any other such feature in the Social Investigation Report or in the report of police that the release of the revisionist would lead to ends of justice being defeated.

15. This Court would think it prudent to explore a little way more about the merits of the prosecution case as the same is based on circumstantial evidence, to find out whether there is a prima facie case against the revisionist, good enough to deny him bail if he were an adult offender. This course of action in the opinion of the Court is always wise to seek for the reason that in case the evidence garnered by the prosecution against a child in conflict with law is insufficient to deny bail to an adult offender, denying it to a child in conflict with law by presuming a case for the prosecution and then trying to find whether there is any disentitling ground on the basis of which bail may be denied under the proviso to Section 12(1) of the Act may not be the right approach. That approach would be one that is discriminatory to the child in conflict with law and would deny him the equal protection of laws. In this connection this Court had occasion to consider the law in Dharmendra (Juvenile) vs. State of U.P. another, Criminal Revision no.4141 of 2017, decided on 13.04.2018, wherein this Court held thus:-

"10. The matter can be looked at from another vantage. In case the revisionist were an adult and stood charged of the offence that he faces with a weak circumstantial evidence of last seen and confession to the police, in all probability, it would have entitled him to bail pending trial. If on the kind of evidence forthcoming an adult would be entitled to bail, denying bail to a child in conflict with law may be denying the juvenile/ child in conflict with law the equal protection of laws guaranteed under Article 14 of the Constitution.

11. The rule in Section 12(1) of the Act is in favour of bail always to a juvenile/ child in conflict with law except when the case falls into one or the other categories of denial contemplated by the proviso. It is not the rule about bail in Section 12 of the Act that in case a child in conflict with law is brought before the Board or Court, his case is not to be seen on merits prima facie about his complicity at all for the purpose granting him bail; and all that has been done is to see if his case falls is one or the other exceptions, where he can be denied bail. The rule in Section 12 sanctioning bail universally to every child in conflict with law presupposes that there is a prima facie case against him in the assessment of the Board or the Court based on the evidence placed at that stage. It is where a case against a child in conflict with law is prima facie made out that the rule in Section 12(1) of the Act that sanctions bail as a rule, except the three categories contemplated by the proviso comes into play. It is certainly not the rule, and, in the opinion of the Court cannot be so, that a case on materials and evidence collected not being made out against a child at all, his case has to be tested on the three parameters where bail may be denied presuming that a prima facie case is constructively there. Thus, it would always have to be seen whether a case prima facie on merits against a child in conflict with law is there on the basis of material produced by the prosecution against him. If it is found that a prima facie case on the basis of material produced by the prosecution is there that would have led to a denial of a bail to an adult offender, in that case also the Rule in Section 12(1) of the Act mandates that bail is to be granted to a juvenile/ child in conflict with law except where his case falls into any of the three disentitling categories contemplated by the proviso.

12. In the opinion of this Court, therefore, the perception that merits of the case on the basis of prima facie evidence is absolutely irrelevant to a juvenile's bail plea under the Act would not be in conformity with the law. The catena of decisions that speak about merits of the case or the charge against a juvenile being irrelevant, proceed on facts and not an assumption that a case on merits is made out, and, not where the case is not at all made out prima facie. It is not that a child alleged to be in conflict with law against whom there is not iota of evidence to connect him to the crime would still have bail denied to him because his case may be placed in or the other disentitling categories under the proviso to Section 12(1) of the Act. If this kind of a construction were to be adopted it might expose the provisions of Section 12(1) of the Act to challenge on ground of violating the guarantee of equal protection of laws enshrined in Article 14 of the Constitution. It is an enduring principle that a construction that lends a statute to challenge about its constitutionality should be eschewed and one that saves and upholds its vires is to be adopted. In this context the guidance of their Lordships of the Hon'ble Supreme Court in Japani Sahoo vs. Chandra Sekhar Mohanty, (2007) 7 SCC 394 may be referred to:-

"51. The matter can be looked at from different angle also. Once it is accepted (and there is no dispute about it) that it is not within the domain of the complainant or prosecuting agency to take cognizance of an offence or to issue process and the only thing the former can do is to file a complaint or initiate proceedings in accordance with law. If that action of initiation of proceedings has been taken within the period of limitation, the complainant is not responsible for any delay on the part of the Court or Magistrate in issuing process or taking cognizance of an offence. Now, if he is sought to be penalized because of the omission, default or inaction on the part of the Court or Magistrate, the provision of law may have to be tested on the touchstone of Article 14 of the Constitution. It can possibly be urged that such a provision is totally arbitrary, irrational and unreasonable. It is settled law that a Court of Law would interpret a provision which would help sustaining the validity of law by applying the doctrine of reasonable construction rather than making it vulnerable and unconstitutional by adopting rule of 'litera legis'. Connecting the provision of limitation in Section 468 of the Code with issuing of process or taking of cognizance by the Court may make it unsustainable and ultra vires Article 14 of the Constitution."

16. This Court has, therefore, proceeded to consider the revisionist's case from the point of view that if he were an adult, would he be entitled to bail. If that be so, there would be no need to examine in meticulous detail whether any disentitling ground as enumerated in the proviso to Section 12(1) of the Act are there. The learned counsel for the revisionist in this connection has made much of the fact that the First Information Report in this case, though a heinous offence, was lodged almost six months after the occurrence, which shows the patently manipulated nature of the prosecution case. He further submits as already noticed that there is no eye witness to the occurrence and the case rests entirely on circumstantial evidence. He has urged that the circumstances are not clinching to connect the revisionist to the crime. The postmortem report also does not support the prosecution case; and that, looking to the fact that the revisionist has done 19 months which is more half the period of the maximum permissible institutional incarceration while the trial is still pending, entitles the revisionist to be set at liberty.

17. This Court finds that the fact that in a heinous offence as serious as murder, the First Information Report came to be lodged almost six months after the occurrence speaks volumes not only about the resourcefulness of the revisionist and his family in evading the law, but reflects very poorly on the police administration in the district at the relevant time to the understanding of the Court. The fact that in an offence as serious as murder where the revisionist came to be charge sheeted by the police on evidence collected, the delay in registration of the First Information Report and that too through judicial intervention prima facie strengthens the prosecution, rather than discrediting it. Also, without saying much this Court feels that the facts that the revisionist was pestering the deceased to marry her; that he followed the deceased to her home from his native village, once his proposal was turned down and reiterated the proposal, which when again turned down, led the revisionist to threaten the deceased, shortly whereafter she was found dead in her room and the revisionist seen leaving deceased's home in hurry on a motorcycle together with the fact that the cause of death of the victim, without an alternative explanation, was found to be asphyxia due to ante-mortem strangulation, makes a prima facie link of inculpatory circumstances against the revisionist. It is perhaps for this reason that before the two courts below not much was said on behalf of the revisionist about the merits of the prosecution case and the revisionist attempted to make out a case for bail on the basis of his right to be enlarged subject to the disentitling grounds under Section 12(1) of the Act.

18. Adverting to the grounds under the proviso to Section 12(1) of the Act last mentioned, there is not much issue between parties that the first of three grounds on which bail may be refused, that is to say, the grounds for a reasonable belief that release is likely to bring the revisionist into association with any known criminal does not exist, as found by the learned Sessions Judge. Said earlier too, this Court approves of the said finding.

19. Now the opinion of the learned Sessions Judge that release is likely to expose the revisionist to moral, physical or psychological danger may be considered. The conduct of the revisionist considered holistically shows that his behavior is much beyond what may pass off as outlandish. Rather, it shows a streak of desperation which is not bridled by the usual norms of civil behavior in society. He appears to have scant regard not only for what members of the community in general may think about him, but also about what his immediate family may have to suffer on account of his behavior, much apart from what they would think about him. These remarks are based on the evidence on record besides the Social Investigation Report, which show that the revisionist proposed to marry the deceased while at his native village over her mobile and came over all the way to the deceased's native village. He persisted in the proposal and when that was finally skirted, he threatened the deceased with death, and soon thereafter she was found dead. There is evidence collected by the police about the last or almost last conversation between the revisionist and the deceased, where he proposed her desperately by holding her and on being refused threatened her. This behavior certainly in the opinion of the Court is that of the desperado, who if released is likely to expose the revisionist to moral, physical or psychological danger.

20. On this score this Court is in agreement with the learned Sessions Judge and also with the views expressed in the Social Investigation Report that his parents/ guardians have no control over the revisionist. This Court would venture to say that the revisionist's parents and family have no influence over him. The findings, therefore, of the Appellate Court on the second of the three grounds envisaged in the proviso to Section 12(1) of the Act is upheld. Likewise, turning to the third ground on which the learned Sessions Judge has found against the revisionist that release on bail would defeat the ends of justice, this Court is of opinion that the entire sequence of events on what happened at the maternal grandfather's place (of the deceased) and the tragic termination of it all in the death of the victim in the safety of her home where the revisionist had intruded, unabashedly proposed a second time and on the proposal being skirted, threatened the prosecutrix with death, soon whereafter she was found dead by her mother in her home, the cause of death being found on autopsy to be strangulation, where the revisionist was seen exiting the deceased's house in hurry by natives of the village, proximate in time before the discovery of the crime, places the case in that category where release if ordered would lead to the ends of justice being defeated. On this count also, this Court is in agreement with the learned Sessions Judge.

21. In the result, this revision fails and is dismissed.

Order Date :- 30.7.2018

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