Juvenile -X vs State Of U.P. And Another
2022 Latest Caselaw 22414 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 91
 
Case :- CRIMINAL REVISION No. - 3471 of 2022
 
Revisionist :- Juvenile X
 
Opposite Party :- State of U.P. and Another
 
Counsel for Revisionist :- Sushil Kumar Dubey
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Narendra Kumar Johari,J.

1. The instant Revision has been filed on behalf of Revisionist-Vishnu (minor) through his brother/natural guardian against the order dated 17.8.2022 passed by Special Judge (POCSO Act)/Additional Session Judge, Etawah in Criminal Appeal No.41 of 2022 (Vishnu Vs. State of U.P.) and the judgment and order dated 28.6.2022 passed by Juvenile Justice Board, Etawah in Bail Application No. 57 of 2022 (Vishnu Vs. State of U.P.) arising out of Case Crime No. 590 of 2022 under Section 302 IPC, P.S. Bharthana, District Etawah by which bail application of the revisionist has been rejected.

2. The record indicates that notice has sufficiently been served on opposite party No.2 but none is present on behalf of the opposite party No.2.

3. The facts of the case in brief are that informant, Vikas Singh has lodged a FIR under Section 302 IPC against his three brothers including delinquent juvenile with contention that his father Virendra Singh @ Hakim Singh had sold his land and when the fact came into the knowledge of his brothers Chandrabhan and Guddu @ Arun, they informed him telephonically and asked to come in village but informant refused. On 1.11.2020 the brothers of informant reached in the village and started discussing with his father about execution of sale deed. During the course of discussion, brothers of informant become aggressor and started beating to his father. They killed his father by strangulating his mouth by ''Gamcha' and when his father died, they carried his body and thrown on the road side of Usrahar to Jalal Nagar road. As informant received information of death of his father, he reached in the village and has lodged the first information report after cremation of his father. During the investigation the accused persons including delinquent juvenile got arrested and on his claim to be juvenile, his matter was referred to Juvenile Justice Board, Etawah who vide its order dated 10.12.2021 declared revisionist as juvenile at the time of occurrence. Further, vide order dated 28.6.2022 Juvenile Justice Board, Etawah has rejected the bail application of juvenile on the ground that the father of juvenile has died and there are possibilities that juvenile will not be under control of his brothers and in such a situation, if he is released on bail, he may fall in association of known criminals.

4. The juvenile challenged the aforesaid order of Juvenile Justice Board in criminal appeal before Special Judge (POCSO Act)/Additional Session Judge, Etawah who rejected his bail application vide order dated 17.8.2022 by observing that the father of juvenile has died and his two brothers have detained in prison, therefore, none is to take care of him rather a special care and protection is needed for juvenile. Against both the aforesaid orders, the juvenile preferred revision before this Court.

5. Learned counsel for the revisionist has submitted that the order of the Juvenile Justice Board, Etawah is erroneous and against principle of law. No material is available on record which may indicate any reasonable ground to believe that release of juvenile is likely to bring him into association with any known criminal or exposing him to moral, physical and psychological danger or his release would defeat the ends of justice. Learned counsel further submitted that the juvenile has falsely been implicated in the case. He is an innocent child, in fact, he is the person who had informed informant about the death of his father. The antemortem injury as mentioned in the postmortem report indicates and throws light that the deceased met with an accident and due to the injuries sustained, he succumbed. It has wrongly been alleged that the deceased got murdered by strangulating his mouth with ''Gamcha'. It has been shown that the police has recovered the said ''Gamcha' on the pointing out of the accused persons but the cause of death as shown in postmortem report is contrary to the story of strangulation. Two other accused persons, who were major, faced the trial and in trial, they have been acquitted vide order dated 7.10.2022 passed by Additional Sessions Judge, Court No. 4/Special Judge (E.C. Act), Etawah. In trial proceedings, the informant Vikas Singh as PW-1 deposed that the FIR was lodged on the dictation of police persons. He has not supported the prosecution story and has not named the delinquent juvenile in the offence. At the time of filing the revision since the other two brothers of juvenile were in jail, that is why, the informant has filed his affidavit in support of juvenile in revision. He has also given the undertaking before Juvenile Justice Board that he is the elder brother/guardian of juvenile and if the juvenile is released from jail, he will look after him and take care for his future as well as for his physical, moral and psychological development.

6. Learned AGA has opposed the argument advanced by the learned counsel for the revisionist and submitted that revisionist was involved in a heinous offence and if he is released from jail, he may fall in the association of known criminals which will be against his physical, moral and psychological development, therefore, considering the nature of offence, the revision petition is liable to be dismissed.

7. Heard learned counsel for the revisionist, learned A.G.A. for the State and perused the record.

8. Before dealing with the matter, it would be appropriate to take into account Section 12 of Juvenile Justice (Care and Protection of Children) Act, 2015, which is reproduced as under:-

"12. Bail to a person who is apparently a child alleged to be in conflict with law.

When any person, who is apparently a child and is alleged to have committed a bailable or non-bailable offence, is apprehended or detained by the police or appears or brought before a Board, such person shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 or in any other law for the time being in force, be released on bail with or without surety or placed under the supervision of a probation officer or under the care of any fit person:

Provided that such person shall not be so released if there appears reasonable grounds for believing that the release is likely to bring that person into association with any known criminal or expose the said person to moral, physical or psychological danger or the person's release would defeat the ends of justice, and the Board shall record the reasons for denying the bail and circumstances that led to such a decision.

2. When such person having been apprehended is not released on bail under subsection (1) by the officer-in-charge of the police station, such officer shall cause the person to be kept only in an observation home in such manner as may be prescribed until the person can be brought before a Board.

3. When such person is not released on bail under sub-section (1) by the Board, it shall make an order sending him to an observation home or a place of safety, as the case may be, for such period during the pendency of the inquiry regarding the person, as may be specified in the order.

9. According to the provisions of Section 12 (1), the wording used "notwithstanding anything contained in the Code of Criminal Procedure or in any other law for the time being in force" is non-obstante clause which has been used by legislation, therefore, the delinquent juvenile may be released on bail irrespective of the provisions of Code of Criminal Procedure. The exception of such release has been mentioned in proviso of Section 12 (1) i.e. if there appears reasonable grounds for believing that release is likely to bring the juvenile into association of known criminals or expose the said juvenile to moral, physical or psychological danger or the person's release would defeat ends of justice.

10. The Act, namely, Juvenile Justice (Care and Protection of Children) Act, 2015 being benevolent and social reforms oriented legislation, should be given full effect by all concerned whenever matters relating to juvenile comes for consideration before them. Therefore, for rejection of his bail application, there must be any material or evidence reflecting reasonable ground to believe that delinquent juvenile, if released on bail is likely to fall into association with known criminal persons or such liberty may expose him to moral, physical or psychological danger, or his release would defeat the ends of justice. In absence of such reasonable grounds the bail of juvenile should not be refused. In Sanjay Chaurasia Vs. State of U.P. 2006 Cr.L.J. 2957 it has been observed that :-

"10. In case of the refusal of the bail, some reasonable grounds for believing above-mentioned exceptions must be brought before the Courts concerned by the prosecution but in the present case, no such ground for believing any of the above-mentioned exceptions has been brought by the prosecution before the Juvenile Justice Board and Appellate Court. The Appellate Court dismissed the appeal only on the presumption that due to commission of this offence, the father and other relatives of other kidnapped boy had developed enmity with the revisionist, that is why in case of his release, the physical and mental life of the revisionist will be in danger and his release will defeat the ends of justice but substantial to this presumption no material has been brought before the Appellate Court and the same has not been discussed and only on the basis of the presumption, Juvenile Justice Board has refused the Bail of the revisionist which is in the present case is unjustified and against the spirit of the Act. It appears that the impugned order dated 27.06.2005 passed by the learned Sessions Judge, Meerut and order dated 28.05.2005 passed by the Juvenile Justice Board are illegal and set aside."

The reason to believe means there should be sufficient cause to believe such thing but not otherwise it excludes a mere suspicion. In other words, we may say that the reason means something more than the prima facie ground.

11. Learned Magistrate by its order dated 28.06.2022 has rejected the bail of revisionist mentioning that the offence committed by juvenile is heinous and non-bailable in nature.

12. In the case of A. Juvenile Vs. State of Orissa, 2009 Cr.L.J., 2002, it has been held that :

"(6) A close reading of the aforementioned provision shows that it has been mandated upon the Court to release a person who is apparently a juvenile on bail with or without surety, howsoever heinous the crime may be and whatever the legal or other restrictions containing in the Cr.P.C. or any other law may be. The only restriction is that if there appears reasonable grounds for believing that his release is likely to bring him into association with any moral, physical or psychological danger or his release would defeat the ends of justice, he shall not be so released."

13. In the light of facts, circumstances and law laid down and fundamental legal principle regarding the juvenile justice, the court has to examine that whether the release of juvenile will expose him to moral, physical and psychological danger and his release on bail would affect the ends of justice.

14. The Juvenile Justice (Care and Protection of Children) Act, 2015 has been enacted by the Parliament, is a reformative and benevolent in nature. Section 3 of the Act, 2015, provides general principles to be followed in administration of the Act.

"Section 3. General Principles to be followed in administration of Act.- The Central Government, the State Governments, the Board, and other agencies, as the case may be, while implementing the provisions of this Act shall be guided by the following fundamental principles, namely:--

(i) Principle of presumption of innocence : Any child shall be presumed to be an innocent of any mala fide or criminal intent up to the age of eighteen years.

(ii) Principle of dignity and worth : All human beings shall be treated with equal dignity and rights.

(iii) Principle of participation : Every child shall have a right to be heard and to participate in all processes and decisions affecting his interest and the child's views shall be taken into consideration with due regard to the age and maturity of the child.

(iv) Principle of best interest: All decisions regarding the child shall be based on the primary consideration that they are in the best interest of the child and to help the child to develop full potential.

(v) Principle of family responsibility: The primary responsibility of care, nurture and protection of the child shall be that of the biological family or adoptive or foster parents, as the case may be.

(vi) Principle of safety: All measures shall be taken to ensure that the child is safe and is not subjected to any harm, abuse or maltreatment while in contact with the care and protection system, and thereafter.

(vii) Positive measures: All resources are to be mobilised including those of family and community, for promoting the well-being, facilitating development of identity and providing an inclusive and enabling environment, to reduce vulnerabilities of children and the need for intervention under this Act.

(viii) Principle of non-stigmatising semantics : Adversarial or accusatory words are not to be used in the processes pertaining to a child.

(ix) Principle of non-waiver of rights: No waiver of any of the right of the child is permissible or valid, whether sought by the child or person acting on behalf of the child, or a Board or a Committee and any non-exercise of a fundamental right shall not amount to waiver.

(x) Principle of equality and non-discrimination: There shall be no discrimination against a child on any grounds including sex, caste, ethnicity, place of birth, disability and equality of access, opportunity and treatment shall be provided to every child. General principles to be followed in administration of Act.

(xi) Principle of right to privacy and confidentiality: Every child shall have a right to protection of his privacy and confidentiality, by all means and throughout the judicial process.

(xii) Principle of institutionalisation as a measure of last resort: A child shall be placed in institutional care as a step of last resort after making a reasonable inquiry.

(xiii) Principle of repatriation and restoration: Every child in the juvenile justice system shall have the right to be re-united with his family at the earliest and to be restored to the same socio-economic and cultural status that he was in, before coming under the purview of this Act, unless such restoration and repatriation is not in his best interest.

(xiv) Principle of fresh start : All past records of any child under the Juvenile Justice system should be erased except in special circumstances.

(xv) Principle of diversion: Measures for dealing with children in conflict with law without resorting to judicial proceedings shall be promoted unless it is in the best interest of the child or the society as a whole.

(xvi) Principles of natural justice: Basic procedural standards of fairness shall be adhered to, including the right to a fair hearing, rule against bias and the right to review, by all persons or bodies, acting in a judicial capacity under this Act.

15. In the case of Sunil Kumar Sambhudayal Gupta Vs. State of Maharastra 2011 (72) ACC 699, Hon'ble Apex Court has held that :-

"Every accused is presumed to be innocent unless his guilt is proved. The presumption of innocence is a human right. Subject to the statutory exceptions, the said principle forms the basis of criminal jurisprudence in India. The nature of the offence, its seriousness and gravity has to be taken into consideration.

The Appellate Court should bear in mind the presumption of innocence of the accused, and further, that the Trial Court's acquittal bolsters the presumption of his innocence. Interference with the decision of the Trail Court in a casual or cavalier manner where the other view is possible should be avoided, unless there are good reasons for such interference."

16. In the case of Rahul Patel Vs. State of U.P. & another, [2018 (1) JIC 357 (All)], this Court has held as under :-

"8. The Apex Court in a catena of judgements has constantly held that gravity of the offence is not a ground to deny bail to a juvenile accused. Unless the conduct of the accused is such to indicate that in all likelihood, after being released on bail, the juvenile-accused will indulge into more crimes. If there are no imminent chances of his repeating the crime, bail to a juvenile should not be ordinarily refused."

17. The record indicates that the body of the deceased was found from the road side and he had nine injuries which might have been caused by any hard and blunt object but no weapon has been recovered either from the possession or pointing out of delinquent juvenile or other major accused persons, therefore, it might be probable that the death of deceased could have been caused by road accident. Neither there is any eye witness nor any ring or chain of circumstantial evidence has been shown. The other two major co-accused have been acquitted in criminal trial for the same offence.

18. The report of District Probation Officer, Etawah indicates that juvenile was studying in class VIII. He has tendency of discipline and is religious in nature. He has no criminal history. The parents of juvenile have died. The elder brother has given his undertaking as guardian of juvenile that if juvenile is released on bail, he will look after him and will take care for his moral, physical and psychological development.

19. Keeping in view the fact of the case, arguments advanced by learned counsel for the parties and legal provisions/law laid down by Apex Court and by this Court, it can be concluded that in present revision no ground is available on record to reject the application of juvenile for bail. Hence, the revision deserves to be allowed. Both the courts below could not appreciate the legal position while rejecting bail application of delinquent juvenile.

20. In view of above, the revision stands allowed. Consequently, the impugned orders dated 17.8.2022 passed by Special Judge (POCSO Act)/Additional Session Judge, Etawah in Criminal Appeal No.41 of 2022 (Vishnu Vs. State of U.P.) and the judgment and order dated 28.6.2022 passed by Juvenile Justice Board, Etawah in Bail Application No. 57 of 2022 (Vishnu Vs. State of U.P.) arising out of Case Crime No. 590 of 2022 under Section 302 IPC, P.S. Bharthana, District Etawah are set aside.

21. It is directed that the revisionist shall be released on bail executing personal bond by his guardian/brother with two solvent sureties each in the like amount to the satisfaction of Principal Magistrate, Juvenile Justice Board, Etawah with the stipulation that on subsequent dates of hearing, he shall produce the delinquent juvenile before the Board during the pendency of the case. His guardian/brother shall also submit an undertaking before the Board that, (i) he shall keep proper control and look after the juvenile, (ii) He will keep away him from the company of known criminals and will do all of his endeavour to improve his better future, (iii) he will take care for moral, physical and psychological development of his son, (iv) the revisionist or his brother shall not tamper with the evidence or cause threat to the witnesses.

22. 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, Etawah on such periodical basis as the Juvenile Justice Board determines.

23. In case of default, the Board would be competent to cancel the bail of revisionist after giving opportunity of hearing to him.

Order Date :- 22.12.2022

AKK