Mohd. Arman Through Mother Salma vs State Of U.P. And Anr.
2021 Latest Caselaw 9341 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 28
 

 
Case :- CRIMINAL REVISION No. - 352 of 2021
 

 
Revisionist :- Mohd. Arman Through Mother Salma
 
Opposite Party :- State Of U.P. And Anr.
 
Counsel for Revisionist :- Mohemmed Amir Naqvi,Abhishek Srivastava
 
Counsel for Opposite Party :- G.A.,Vimal Kishor Singh
 

 
Hon'ble Mohd. Faiz Alam Khan,J.

1. Heard Sri Abhishek Srivastava, learned counsel for the revisionist as well as Sri Triveni Prasad, learned AGA for the State and perused the record. However, none present for the opposite party no.2 while the name of Sri Vimal Kishore Singh has been published in the cause list on behalf of opposite party no.2 and for his convenience the case which was taken on earlier in the day was fixed for the post lunch session, however, he is not present.

2. The present Revision has been filed against the Judgement and order dated 06.02.2021 passed by Additional Sessions Judge/ Special Judge, POCSO Act, Lucknow in Criminal Appeal No.15 of 2021 (Mohd. Arman Vs. State of U.P.) under Sections 304 of IPC and Section 3(2)(V) of S.C./S.T. Act whereby appeal filed by the revisionist has been dismissed confirming the bail rejection order dated 15.01.2021 passed by Juvenile Justice Board, Mohan Road, Lucknow in Misc. Case No. 137 of 2020 arising out of Case Crime No.198 of 2020, under Sections 304 of IPC and Section 3(2)(V) of S.C./S.T. Act, Police Station Husainganj, District Lucknow and also to release the revisionist in the custody of his guardian/mother.

3. The brief facts giving rise to this Revision are that an FIR was lodged by one Amardeep Sonkar on 27.09.2020 at 20:38 hours with regard to an incident occurred on 04.09.2020 stating therein that his father on the relevant date and time had gone to the market to purchase fruits. He was informed that his father is lying unconscious on the road on which he arrived at the spot and took his father to the hospital where he was declared dead. He was not having true account of the incident and therefore, the last rites of the deceased was performed. After performing the last rites he went to the market where he was informed by one vendor namely Vishal that during the course of bargaining with the accused persons there was some scuffle of deceased with the juvenile and his father and other persons who started assaulting his father and the son of Mukarram (Juvenile) pushed his father with force due to which his father had fallen and his head was struck on the road causing the blood oozing from the ear and nose of the deceased.

4. Learned counsel for the revisionist while pressing the Revision submits that the juvenile has been declared so of the age of the 12 years 5 months and 14 days at the date of occurrence vide order dated 01.01.2021 of the Juvenile Justice Board, Lucknow and the same order has not been challenged at any higher forum and therefore, the juvenile is entitled to the beneficial provisions of the Juvenile Justice Act, 2015.

5. It is further submitted that in the FIR the role of only pushing the deceased has been assigned to the juvenile while during course of investigation statement of two witnesses namely Mahendra Prasad Gupta and Innamulla have been recorded who have also stated that juvenile during the course of quarrel had pushed the deceased and the deceased after falling on the road had become unconscious. It is vehemently submitted that even if the case of the prosecution is taken on its face it is apparent that the act of the juvenile could not be said to be intentional as according to the own story of the prosecution quarrel was going on between deceased and the father of the juvenile, there was a crowd and in that scenario the deceased was pushed forcefully and by any stretch of imagination the said forceful push could not be attributed for the purpose of causing his death and the act of the juvenile was of an innocent child.

6. It is further submitted that both the courts below have not considered this aspect of the matter and perhaps were guided by the alleged heinousness of the crime and therefore, the prayer of the bail of applicant has been wrongly rejected.

7. Learned AGA on the other hand submits that revisionist is named in the First Information Report. There are two witnesses who have testified that it was juvenile who had given hard push to the deceased resulting in head injury and death of the deceased and therefore, there is every apprehension that if released on bail the applicant may fall in association with any known or unknown criminal or he may otherwise be exposed to moral, physical or psychological damage danger.

8. Having heard learned counsel for the parties and having perused the record, this Court is to see whether the opinion of the learned appellate Court as well as Juvenile Justice Board recorded in the impugned judgment and orders are in consonance with the provision of Section 12 of the Juvenile Justice Act. Section 12 of the Act lays down three contingencies in which bail could be refused to juvenile. They are:-

(1) if the release is likely to bring him into association with any known criminal, or

(2) expose him to moral, physical or psychological danger, or

(3) that his release would defeat the ends of justice.

9. Perusal of record in the light of the settled law pertaining to the releasing of the juvenile on bail would reveal that the role of only giving a hard push to the deceased has been attributed to the juvenile. The report of the crime has been lodged after 24 days. It is submitted on behalf of revisionist that the explanation provided by the informant for occurring delay in lodging the FIR is not reasonable. There is a report of the District Probation Officer dated 11.01.2021 available on record, a perusal of which would reveal that the enquiry has been conducted by the Additional D.P.O. wherein it has categorically mentioned that the cause of committing offence by the juvenile was illiteracy and his tender age. It is also stated that in the report that the juvenile is not having any criminal history and there is no hindrance in placing the juvenile in the supervision of her mother. Surprisingly, even after this report of the D.P.O. in favour of the juvenile the prayer of bail of the juvenile was rejected by both the courts below. The only thing apart from the first information report and the statement of the witnesses recorded during course of investigation, which was available before the Appellate Court was the report of D.P.O. which clearly says that the juvenile could be placed in the custody of her mother therefore, there was no material available before the Appellate Court on which it could be inferred that after releasing on bail the juvenile may fall in any bad company or he may be exposed to moral, physical or psychological danger. The appellate Court as well as the Juvenile Justice Board was required to infer from any positive evidence available on record as to whether any condition mentioned in the Sub-section 1 of Section 12 of Juvenile Justice Act is present and it is only and only in that case the prayer of bail of the juvenile could have been rejected.

10. Thus, in considered view of this Court both the Courts below have committed material illegality in rejecting the prayer of bail on behalf of the juvenile and both the orders are liable to be set aside.

11. In view of the above, the Revision is allowed. The impugned orders dated 06.02.2021 and 15.01.2021 are hereby set aside.

12. Let the revisionist Mohd. Arman involved in the aforesaid case crime be released on bail on executing a personal bond by his mother with two reliable sureties each in the like amount to the satisfaction of the Court/Board concerned and on submission of undertaking by his mother that she will take due care of the juvenile, will not allow him to indulge in unlawful or criminal activity or join the company of unlawful elements, will keep him under strict control, revisionist shall not attempt to tamper with the evidence or threaten the witness; shall not seek any adjournment on the date fixed for evidence, shall remain present before the trial Court on each date fixed, either personally or through his counsel, failing which the facility of bail granted to juvenile will be canceled.

Order Date :- 3.8.2021

Mohit