Santosh vs State Of U.P. And Anr.
2019 Latest Caselaw 3969 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

									  Court No. 80
 
Case :- CRIMINAL APPEAL No. - 5814 of 2018
 

 
Appellant :- Santosh
 
Respondent :- State Of U.P. And Anr.
 
Counsel for Appellant :- Anurag Sharma,Mohd Imdad Siddiqui
 
Counsel for Respondent :- G.A.,Sunil Kumar Singh
 

 
Hon'ble Pradeep Kumar Srivastava,J.

1. Heard learned counsel for the appellant, learned A.G.A. for the State and learned counsel for the complainant. Perused the record.

2. This appeal has been filed by juvenile Santosh against the order dated 13.09.2018 passed by learned VIIIth Additional Sessions Judge/Special Court POCSO Act/Children Court, Budaun in Bail Application No. 2869 of 2018 (Santosh Vs. State of U.P. ), in Case Crime No. 198 of 2018, under section 302, 307, 452 read with section 34 IPC, P.S. Dataganj, District Budaun, by which, bail application of juvenile has been rejected by the learned court below.

3. Aggrieved by said order, this juvenile appeal has been filed and the order has been challenged on the basis that same is illegal and has been passed without application of judicial mind and is in violation of principles contained under section 12 of Juvenile Justice Act. There was no report as such that juvenile was in association of his father or he was physically present at the time of incident which defeats the ends of justice. No cogent reason has been recorded while rejecting bail application of juvenile. Therefore, the impugned order is not sustainable under law and is liable to be set aside.

4. From perusal of FIR, it appears that criminal incident took place on 02.3.2018 at 5.00 p.m. and all the accused persons of same family were implicated in which juvenile was also implicated. It also appears that juvenile was assigned with lathi and it could be inferred that if any injury was caused, the same must have been caused by lathi. FIR also shows that other co-accused persons were father and uncle of juvenile. 5. The record also shows that on 16.8.2018, the Juvenile Justice Board, Budaun, passed an order in respect of juvenile that his age was found more than 16 years and considering his physical and mental capacity to understand the consequence of offence, his case was referred to Children Board, therefore, it is not disputed that juvenile was above 16 years, but below 18 years of age.

6. Section 12 of Juvenile Justice Act, 2015 by the amended Act the criteria for bail under section 12 of the Juvenile Justice Act has not been changed and 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.

7. 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.

8. 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 Juvenile Justice 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.

9. 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.

10. From perusal of FIR, it appears that juvenile was not sole author of crime and simply he was in association of his father and uncle. No fatal injury was found to be caused by him.

11. Learned A.G.A. has vehemently opposed the prayer of bail and pointed out that against juvenile, a case under U.P. Gangsters Act, is pending. But from perusal of rejoinder affidavit filed by learned counsel for the accused, it appears that in that case final report has been submitted against juvenile.

12. From perusal of order of children court, it appears that the bail application of juvenile has been rejected only on the basis that offence was very serious and he was in association of his father and uncle in the commission like murder. Under Juvenile Justice Act, the said view cannot be a ground for refusing bail to a juvenile, hence I find that impugned order is apparently illegal and in violation of Section 12 of Juvenile Justice Act and is liable to be set aside.

13. The appeal is accordingly allowed. The impugned order dated 13.9.2018 passed by the VIIIth Additional Sessions Judge/ Special Court (POCSO Act), Budaun in Bail Application No. 2869 of 2018 is set aside.

14. The juvenile, accused-appellant namely Santosh be released on bail and he be given in the custody of his Phupha guardian namely Dev Raj Singh on his filing a personal bond and two sureties of the like amount to the satisfaction of the court concerned with undertaking that the guardian Phupha Dev Raj Singh shall keep the juvenile away from unsocial and criminal association and will look after his education and health, keeping his mental and social status. He will also give an undertaking that on being so released on bail, the accused-appellant namely juvenile Santosh will not however indulge in commission of any crime and she will ensure his presence during trial before the court whenever so required by the court below.

15. Office is directed to transmit the certified copy of this order to the court concerned for information and its necessary compliance.

Order Date :- 2.5.2019

RCT/-