Chhote Lal (Minor) vs State Of U.P. And Another
2021 Latest Caselaw 4528 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 74
 

 
Case :- CRIMINAL REVISION No. - 308 of 2021
 

 
Revisionist :- Chhote Lal (Minor)
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Revisionist :- Juned Alam
 
Counsel for Opposite Party :- G.A., R.K. Shahi
 

 
Hon'ble J.J. Munir,J.

1. This is a Revision under Section 102 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short, ''the Act') from an order of the Additional Sessions Judge/Special Judge (POCSO Act), Court No.1, Kushi Nagar at Padrauna, affirming in Appeal an order of the Juvenile Justice Board, Kushi Nagar at Padrauna, declining bail.

2. The facts giving rise to the failed bail plea before the two Courts below are that a written information was lodged with Police Station Vishunpura, District Kushi Nagar on 05.07.2020 at 4:30 p.m. to the effect that on 04.07.2020 at 5 O'clock in the evening, the informant's son, Satyam was being teased by their neighbour, Chhote Lal about his father's name. This led the informant's mother-in-law to inquire. All of a sudden, Kailash, Ashok, Pankaj, Amit, Chhote Lal (the revisionist), Golu Kumar and Sunar abused the informant's mother-in-law in filthy words. The informant's mother-in-law reportedly forbade them from abusing her, whereupon each of the accused assaulted her with sticks (lathi-danda), so severely that she fainted. The informant called her husband over phone. As soon as the informant's husband arrived, they assaulted and battered him too with sticks (lathi-danda) and a rod, in consequence whereof he fell down. The informant's father-in-law, seeing his son and daughter-in-law in distress, rushed to their rescue, but he too was battered by the assailants and seriously injured. The accused left, holding out threats.

3. The injured were conveyed to Hospital by persons nearby. Finding the injuries serious, they were referred to the District Hospital. The Doctors at District Hospital further referred the injured to the Gorakhpur Medical College. It was at this stage that the information was lodged. The information aforesaid led to registration of a Case Crime no.153 of 2020, under Sections 147, 323, 504, 506, 308, 188 IPC and Section 51B of the Disaster Management Act, 2005 (Aapda Pravandhan Adhiniyam) at Police Station Vishunpura, District Kushi Nagar. Lateron. During treatment, the informant's father-in-law, Murli Singh succumbed to his injuries. In consequence, Section 304 IPC was added to the case.

4. The revisionist's mother made an application to the Juvenile Justice Board, seeking to declare him a juvenile. The Board vide their order dated 29.07.2020, declared the revisionist, Chhote Lal, a minor in conflict with law, holding him to be aged 10 years, 5 months and 1 day, on the date of occurrence. The revisionist has, thus, been adjudged a child in conflict with law. The revisionist's mother, then made a bail application to the Board, which came to be rejected vide order dated 26.08.2020. An Appeal on behalf of the revisionist was carried to the learned Sessions Judge, Padrauna. This Appeal, being Criminal Appeal no.40 of 2020, came up for determination before the Additional Sessions Judge/ Special Judge (POCSO Act), Court No.1, Kushi Nagar at Padrauna on 20.10.2020. It was dismissed by judgment and order of that date, affirming the Board.

5. Heard Mr. Juned Alam, learned Counsel for the revisionist, Mr. R.K. Shahi, learned Counsel appearing for the complainant-opposite party no.2 and Mr. S.S. Tiwari, learned A.G.A. appearing on behalf of the State.

6. It is submitted that co-accused, who are adults, that is to say, Pankaj Kumar Arya, Ashok and Amit Kumar and assigned an identical role to that of the juvenile have been admitted to bail vide orders dated 02.12.2020, 15.12.2020 and 21.01.2021 passed in Criminal Misc. Bail Application nos.31781 of 2020, 45999 of 2020 and 49434 of 2020, respectively. It is urged that since the adult co-accused, who have an identical role, have been enlarged on bail, the revisionist is entitled to the same relief.

7. Learned A.G.A. and the learned Counsel for the complainant-opposite party no.2 have opposed the bail plea.

8. This Court has perused the orders impugned. The Courts below have declined bail to the revisionist on ground that considering the nature of the offence, the law favours a rigorous approach to be adopted. It has been remarked that the atmosphere in the child's family is not conducive to protection and, therefore, letting him off on bail may lead to a repetition of the offences. It has also been remarked that there appears to be no arrangement in the child's family to prevent a repeat offence. It has been concluded that releasing the child on bail, would lead to ends of justice being defeated.

9. In a case, where an adult co-accused, with an identical role as that of the child, is admitted to bail on merits, there is no justification for the child's plea for bail to be tested on the anvil of the proviso to Section 12(1) of the Act. Section 12(1) of the Act comes into play, where a child is not entitled to bail on merits, but seeks that liberty because bail for the child is a right, an adult, similarly circumstanced, would not be entitled to bail on merits. It is in a case like that, that the Juvenile Justice Board or the Judge in Appeal are entitled to examine if the child's case falls into one or the other disentitling categories, enumerated under the proviso to Section 12(1) of the Act. If the case does fall into these disentitling categories, the otherwise absolute right of the child to bail pending trial, may be defeated. However, this would not be the case, where on merits the child is entitled to bail. In other words, in a case where an adult, similarly circumstanced as the child, is entitled to be released on bail, it is not the intention of the law that the child's right to liberty must further be tested on the parameters of the proviso to Section 12(1) of the Act. In the present case, similarly circumstanced co-accused, Pankaj Kumar Arya has been admitted to bail on ground that there is a cross-version, where both sides have sustained injuries and it is difficult to decide at this stage, which party were the aggressors. Since the child and the adult co-accused, Pankaj Kumar Arya, who has been admitted to bail vide order dated 02.12.2020 passed in Criminal Misc. Bail Application no.31781 of 2020, stand on the same foot, it is evident that the child if an adult, would have been admitted to bail in the same manner that the two other co-accused, Amit Kumar and Ashok have been.

10. In the circumstances, the orders impugned denying bail to the revisionist, cannot be sustained. These deserve to be set aside and reversed.

11. In the result, this Revision succeeds and is allowed. The impugned order dated 20.10.2020 passed by the learned Additional Sessions Judge/ Special Judge (POCSO Act), Court no.1, Kushi Nagar at Padrauna in Criminal Appeal no.40 of 2020 and the order dated 26.08.2020 passed by the Juvenile Justice Board, Kushi Nagar at Padrauna in Case Crime no.153 of 2020, under Sections 147, 323, 504, 506, 308, 304, 188 IPC and Section 51B of the Disaster Management Act, 2005 (Aapda Pravandhan Adhiniyam), Police Station Vishunpura, District Kushi Nagar, are hereby set aside and reversed. The bail application of the revisionist stands allowed.

12. Let the revisionist, Chhote Lal, through his natural guardian/ mother, Munni Devi wife of Vyas, be released on bail in Case Crime no.153 of 2020, under Sections 147, 323, 504, 506, 308, 304, 188 IPC and Section 51B of the Disaster Management Act, 2005 (Apada Pravandhan Adhiniyam), Police Station Vishunpura, District Kushi Nagar upon his mother furnishing a personal bond with two solvent sureties of her relatives each in the like amount to the satisfaction of the Juvenile Justice Board, Kushi Nagar at Padrauna, subject to the following conditions:

(i) that the natural guardian/ mother, Munni 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 mother will ensure that the juvenile will not repeat the offence.

(ii) The revisionist and his mother, Munni Devi will report to the District Probation Officer on the first Monday of every calendar month commencing with the first Monday of May, 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, Kushi Nagar at Padrauna on such periodical basis as the Juvenile Justice Board may determine.

(iv) The party shall file a computer generated and self attested copy of the 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 verification in writing.

Order Date :- 24.3.2021

Anoop/ Neeraj