Manish Kumar vs State Of U.P. And Another
2021 Latest Caselaw 2315 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 74							
 

 
Case :- CRIMINAL REVISION No. - 171 of 2021
 

 
Revisionist :- Manish Kumar
 
Opposite Party :- State of U.P. And Another
 
Counsel for Revisionist :- Manvendra Singh
 
Counsel for Opposite Party :- G.A.
 
Hon'ble J.J. Munir,J.

1. This criminal revision is directed against a judgment and order of the Exclusive Judge, POCSO Act, Fatehpur dated 01.12.2020, made in Criminal Appeal No. 25 of 2020, affirming an order of the Juvenile Justice Board, Fatehpur1 dated 30.09.2020, declining bail to the revisionist pending trial.

2. The prosecution case, shortly put, is that on 25.04.2020, at about 03:32 in the afternoon, a Non-Cognizable Report2 bearing number 57 of 2020, was got lodged by the informant/opposite party no. 2, Dharmendra Kumar, with Police Station - Hussainganj, District - Fatehpur, under Sections 323 and 504 of the Indian Penal Code, 18603 with allegations that 2 O' Clock earlier in the day, Pradeep son of Rakesh, Pappu son of Naresh, Manish son of Santosh (the revisionist) and Santosh son of Rahimal, intruded into his house over the issue of not permitting a drain to be cleaned. They beat up the informant, delivering blows, besides employing sticks (danda). The informant's uncle, Suresh, who attempted to rescue him, was also battered and abused. The NCR closed with information to the effect that the informant/opposite party no. 2 and his uncle Suresh had sustained substantial injury, and that a case be registered and action taken in accordance with law. Later on, on 25.04.2020, at eleven minutes past 7 O' Clock, a First Information Report4 was lodged by the first informant/opposite party no. 2, Dharmendra Kumar, bearing reference to the NCR earlier lodged in the day about the same incident, informing the Police that the opposite party's uncle, Suresh, who was taken to the Fatehpur Sadar Hospital for attending to his injuries, had died. The FIR requested necessary action.

3. It appears that the case was then converted to a regular crime, bearing Case Crime No. 78 of 2020, under Sections 323, 504, 304/34 IPC, Police Station - Hussainganj, District - Fatehpur. The revisionist, being one of the assailants nominated, is in jail. He applied to the Board, seeking to be declared a child in conflict with law, under the provision of the Juvenile Justice (Care and Protection of Children) Act, 20155. The Board, vide order dated 09.09.2020, held the revisionist to be a child aged 17 years, 3 months and 6 days on the date of occurrence. The revisionist then applied for bail to the Board, through his mother, Anita Devi. The aforesaid bail application was rejected vide order dated 30.09.2020. The revisionist carried an appeal to the learned Sessions Judge, Fatehpur, where it was registered as Criminal Appeal No. 25 of 2020. The appeal came up for determination before the Exclusive Judge, POCSO Act, Fatehpur, on 01.12.2020. The learned Judge has dismissed the appeal and upheld the Board's order, declining bail.

4. Aggrieved, this revision has been preferred.

5. This revision was admitted to hearing on 25.01.2021, and notice was issued to opposite party no. 2, returnable on 15.02.2021. A perusal of the office report dated 12.02.2021 shows that notice issued to opposite party no. 2 has been personally served, according to the report of the Chief Judicial Magistrate, Fatehpur, placed at Flag 'A'. Service upon the second opposite party is, therefore, held sufficient.

6. When the case is called on, no one appears on behalf of the second opposite party.

7. Heard Mr. Santosh Kumar Nigam, learned Advocate holding brief of Mr. Manvendra Singh, learned counsel for the revisionist, and Mr. Piyush Tripathi, learned State Law Officer appearing on behalf of the State.

8. It is submitted by learned counsel for the revisionist that he has been charged in the instant crime along with three other co-accused, to wit, Pradeep, Pappu and Santosh, all adults. All the three adult co-accused have been admitted to bail by this Court vide order dated 19.11.2020, passed in Criminal Misc. Bail Application No. 24845 of 2020. It is urged that the revisionist's role and that of the adult co-accused is identical, with no distinction therein that may be distinguishable to the revisionist's disadvantage on the meirts of the case. It is urged that once co-accused, who are adults and similarly situate, have been admitted to bail, there is absolutely no warrant to detain a child in conflict with law, in the said crime. It is also urged that the Social Investigation Report does not carry any adverse material against the revisionist, and the revisionist's case does not fall under any of the three disentitling categories postulated under the proviso to Section 12(1) of the Act of 2015.

9. Learned A.G.A. has opposed the prayer to set aside the order of the two courts below, and to enlarge the revisionist on bail, pending trial.

10. This Court has keenly considered the rival submissions, perused the record as well as the impugned orders passed by the courts below. A perusal of the impugned orders show that bail has been denied to the revisionist primarily on the ground that if released on bail, the revisionist's case falls under all the three excepted categories, where bail to a juvenile may be refused, under the proviso to Section 12(1) of the Act of 2015. Section 12(1) of the Act of 2015 reads thus :

12. Bail of juvenile.--

(1) When any person accused of a bailable or non-bailable offence, and apparently a juvenile, is arrested or detained or appears or is brought before a Board, such person shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law for the time being in force, be released on bail with or without surety 1[or placed under the supervision of a Probation Officer or under the care of any fit institution of fit person] but he shall not be so released if there appear reasonable grounds for believing that the release is likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice.

11. In reaching his conclusion, the learned Judge has held the offence to be henious, where a man has lost his life, and has further recorded the fact that the mother appears to have little control over the juvenile. It has been remarked that when the crime was committed, he had his father along with him involved in it. This Court is not much impressed with the learned Judge's reasoning. Apart from other matters, this Court cannot ignore the fact that the three other co-accused, who are adults, with an identical allegation as that against the revisionist, have been granted bail by this Court, pending trial. If the revisionist were an adult, he too would be granted bail like the other three co-accused, inasmuch as the role assigned to him in the assault is no different from the other co-accused. Now, it would be a fallacious approach to subject the juvenile's plea for bail to further test envisaged under the proviso to Section 12(1) of the Act of 2015, where three contingencies have been specified, under which the juvenile's right to bail, which is otherwise absolute, may be circumscribed. The scheme of Section 12 of the Act of 2015 makes it evident that it engrafts a universal rule of bail to all children in conflict with law. It then hedges in the right of a child to that absolute bail, where his case falls under any of the three exceptions postulated under the proviso to Section 12(1). Section 12(1) would come into play where a juvenile/child is not entitled to bail on merits, or so to speak, if he were an adult, would not be entitled to bail on merits. Section 12(1) of the Act of 2015 would have no application to the case of a juvenile or a child, whose case on merits is one that entitles him to bail. Put differently, Section 12 would not apply to the case of a child, who would be entitled to bail if he were an adult, circumstanced as he is, in relation to the crime. Section 12(1) together with its proviso, do not and cannot subject a child to further fetters of liberty, than those that would apply to an adult similarly circumstanced. If the provision of Section 12(1) were to be construed in the manner that notwithstanding a case for bail on merits for a juvenile, his case would have to be subjected to further scrutiny under the proviso to Section 12(1) of the Act and pass muster there, it might expose the provisions of Section 12(1) of the Act of 2015 to the vice of unconstitutionality on grounds of discrimination or unreasonableness. A statute is certainly not to be construed in a fashion where it might be imperilled with unconstitutionality. In the present case, the adult co-accused being found entitled to bail on merits, there is absolutely no reason to look any further into the revisionist's case with reference to the three parameters specified under the proviso to Section 12(1) of the Act of 2015. In doing so, in the considered opinion of this Court, both the courts below have manifestly erred.

12. In the result, this revision succeeds and stands allowed. The impugned orders dated 01.12.2020 and 30.09.2020, passed by the Exclusive Judge, POCSO Act, Fatehpur, and Juvenile Justice Board, Fatehpur, respectively are set aside and reversed. The bail application for the revisionist, accordingly, stands allowed.

13. Let the revisionist, Manish Kumar, through his natural guardian/mother, Smt. Anita Devi, be released on bail in Case Crime No. 78 of 2020, under Sections 323, 504, 304/34 IPC, Police Station - Hussainganj, District - Fatehpur, upon his mother furnishing a personal bond with two solvent sureties of his relatives each in the like amount to the satisfaction of the Juvenile Justice Board, Fatehpur, subject to the following conditions :

(i) that the natural guardian/mother, Smt. Anita Devi, will furnish an undertaking that upon release on bail, the juvenile will not be permitted to come 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) The revisionist and his mother, Smt. Anita Devi, will report to the District Probation Officer on the first Monday of every calendar month commencing with the first Monday of March, 2021 and if during any calendar month, the first Monday falls on a holiday, then on the following working day.

(iii) 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, Fatehpur on such periodical basis as the Juvenile Justice Board may determine.

(iv) The party shall file a computer-generated and self-attested copy of order downloaded from the official website of High Court, Allahabad.

(v) The Court/Authority/Official concerned shall verify the authenticity of that computerized copy of the order from the official website of High Court, Allahabad and shall make a declaration of such verification in writing.

Order Date :- 15.2.2021

I. Batabyal