Allahabad High Court
Shivam (Minor) vs State Of U.P. And Another on 19 April, 2019
Bench: Pradeep Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 72 A.F.R.
Case :- CRIMINAL APPEAL No. - 2994 of 2019
Appellant :- Shivam (Minor)
Respondent :- State Of U.P. And Another
Counsel for Appellant :- Dushyant Singh,Mahesh Chand
Counsel for Respondent :- G.A.
Hon'ble Pradeep Kumar Srivastava,J.
1. Heard learned counsel for the appellant and learned A.G.A.
2. Admit.
3. Learned A.G.A. has accepted notice on behalf of State of U.P. He does not propose to file any counter affidavit in the matter.
4. This criminal appeal has been preferred against the impugned judgment and order dated 02.04.2019, passed by Additional District and Sessions Judge, Court No. 12/Special Judge (P.O.C.S.O. Act), Bulandshahr, in Criminal Misc. Bail Application No. 842 of 2019, arising out of Case Crime No. 1194 of 2018, under Sections 302, 504, 506 I.P.C. and Section 3(2)(5) of the S.C./S.T. Act, Police Station Khurja Nagar, District Bulandshahr, whereby the bail application of the juvenile Shivam has been rejected.
5. As per first information report, the juvenile Shivam along with other co-accused persons came with lathi, danda and iron rod and started beating the Banti, due to which Banti has sustained serious injuries on his person. It appears that subsequently, during the course of treatment, the said Banti expired and thereafter, the case was modified under Section 302 I.P.C.
6. The appellant has challenged the impugned order submitting that he is juvenile. He is in juvenile home since 17.11.2018 and his age has been determined below 18 years by Juvenile Justice Board, Bulandshahr, vide its order dated 01.03.2019 (Annexure No. 1 to this appeal). From perusal of the said order, it is clear that the Board while referring the case of the present appellant to the children court has referred that on the date of incident i.e. 22.10.2018, the age of the juvenile was determined to be 16 years, 4 months and 17 days. It has further been submitted that the first information report is delayed and lodged after about five hours from the time of occurrence. The injured Banti had died during the course of treatment at Sabdarjang Hospital, New Delhi and his post-mortem was also conducted there. The accused-appellant has been falsely implicated in the present case and no specific role has been assigned to him. Learned counsel for the accused-appellant has submitted that juvenile Shivam does not belong to the family of either of the co-accused persons and the first information report does not disclose any specif role and participation of the juvenile Shivam. The other co-accused persons have already been granted bail by the order of this Court, vide order dated 27.03.2019, passed in Criminal Appeal No. 625 of 2019, hence, the present accused-appellant who has no previous criminal history to his credit is also entitled for bail.
7. Learned A.G.A. has vehemently opposed and has contended that the learned trial court has rightly rejected the bail application of the accused-appellant and there is sufficient evidence against the present accused-appellant.
8. Provision has been made under Section 12 of the Act that when any person accused of a bailable or a non-bailable offence and apparently a juvenile, is arrested or detained or is brought before a board then irrespective of the accusation he shall be released on bail or placed under the supervision of a probation officer or under the care of any fit institution or fit institution except when :-
1. if there appear reasonable grounds for believing that the release is likely to bring him into association with any known criminals or
2. that it will expose him to moral, physical or psychological danger, or
3. that his release would defeat the ends of justice.
9. It has been held by the supreme court in Dr. Subramaniam Swamy vs Raju, 2014 (86) ACC 637 that a juvenile has to be released on bail unless the court has a reasonable ground to believe that his release will bring him into association of some known criminal, or will expose him to moral, physical or psychological danger or his release would defeat the ends of justice.
10. Section 15 of the Amending Act only provides for transfer of a juvenile to the Children Court for trial as an adult. Where the child has attained the age of 16 years and has been alleged to have committed heinous offence, the JJ Board is required to conduct a preliminary inquiry with regard to his mental and physical capacity to commit offence, ability to understand the consequence of the offence and the circumstances in which the offence was committed considering their physical, psychological and mental status in commission of crime. Section 18(3) of the Act provides that after making the assessment under section 15, JJ Board comes to a conclusion that there is a need for trial of the child as an adult, the Board may pass an order for the transfer of the trial of the case to the Children Court.
11. It is pertinent to mention here that Section 12 of the Juvenile Justice (Care and Protection of Children) Act has not been amended so far as the parameters and yardstick for granting bail to the juvenile-accused is concerned. Therefore, while rejecting the bail application of such juvenile, it cannot be the criteria that the alleged offence is of serious and heinous nature. The order must show that the grant of bail to the juvenile-accused is against his interest as there is possibility of his being associated with known criminals, or there is some short of moral, physical or psychological danger to him or there is likelihood of end of justice being defeated. All these conditions have been incorporated in law in order to ensure justice to the juvenile.
12. The impugned order does not show any specific role of the present accused-appellant (juvenile Shivam) and as such, I find perversity and illegality in the impugned order, therefore, the same is liable to be set aside.
13. The appeal is allowed. The impugned order dated 02.04.2019 is set aside.
14. The juvenile, accused-appellant namely Shivam be released on bail and he be given in the custody of the mother guardian namely Smt. Kamlesh Devi on her filing a personal bond and two sureties of the like amount to the satisfaction of the court concerned with undertaking that the guardian mother Smt. Kamlesh Devi shall keep the juvenile away from unsocial and criminal association and will look after his education and health, keeping his mental and social status. She will also give an undertaking that on being so released on bail, the accused-appellant namely juvenile Shivam will not however indulge in commission of any crime and she will ensure his presence during trial before the court whenever so required by court.
15. Office is directed to transmit the certified copy of this order to the court concerned for information and its necessary compliance.
Order Date :- 19.4.2019
sailesh
