Allahabad High Court
Durvasa Dwivedi vs State Of U.P. And Another on 20 September, 2016
Author: Amar Singh Chauhan
Bench: Amar Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR RESERVED Court No. - 22 Case :- CRIMINAL REVISION No. - 1976 of 2015 Revisionist :- Durvasa Dwivedi Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Sanjay Kumar Singh,C.K.Mishra,D.S.Mishra,Sailesh Pandey Counsel for Opposite Party :- Govt.Advocate,Daya Shankar Mishra,Prabhakant Singh,Shailesh Pandey Hon'ble Amar Singh Chauhan,J.
This revision has been preferred against the judgment and order dated 5.5.2015 passed by the Sessions Judge, Mirzapur in Criminal Appeal No. 18 of 2015 (Shubham Pandey Vs. State of U.P.) whereby the order dated 20.3.2015 passed by Juvenile Justice Board rejecting the bail of juvenile, Shubham Pandey has been set aside and the juvenile, Shubham Pandey was released on bail.
Admittedly, opposite party no. 2, Shubham Pandey is adjudged juvenile, aged about 17 years and 29 days and special provisions are there for the bail of juvenile.
Brief facts of the case are that on 11.12.2014 at about 10:30 A.M., while the informant, Durvasa Dwivedi and his brother Mrityunjay Dwivedi, Dhananjay and Shiv Shankar Giri were escorting the pilgrims towards Maa Vindhyawasini Mandir, Gyan Chandra Pandey (accused/father of O.P. No. 2) Shubham Pandey, O.P. No. 2 obstructed them and alleged that it is they, who will carry out the pilgrimage and not the informant. On this, the accused persons abused the informant, to which they were desisted from doing so, but in the process both Gyan Chandra Pandey armed with a DBBL gun and Shubham Pandey, O.P. No. 2 armed with bhunjali (sharp cutting weapon) inflicted fire arm and bhunjali injuries at the brothers of the informant, i.e. Mrityunjay, Shiv Shankar Giri and Dhananjay, to which Mrityunjay and Shiv Shankar succumbed to injuries. The first information report about the aforesaid double murder case against the opposite party no. 2 and his father was lodged promptly by the revisionist on the same day on 11.12.2014 at 1:45 AM at the P.S. Vindhyachal, District Mirzapur as Case Crime No. 1206 of 2014 under Sections 307, 302 IPC and Section 7 of Criminal Law Amendment Act.
The Juvenile Justice Board on 20.3.2015 rejected the bail application of opposite party no. 2 primarily on the ground that the alleged offence involved a double murder in broad-daylight and in case opposite party no. 2 is released on bail, he is likely to abscond and also obstruct fair investigation. The Board also declined to place reliance on the report of the D.P.O., as it had not taken into consideration the entire facts and circumstances of the case, but the order of the Board has been interfered with under the impugned order dated 5.5.2015, whereby order of the Board dated 20.3.2015 has been set aside and opposite party no. 2 has been directed to be enlarged on bail but in the instant revision the operation of the Session's Judge order releasing the juvenile was stayed by interim order of this Court dated 1.6.2015.
Heard Sri Sanjay Kumar Singh, learned counsel for the revisionist, Sri Daya Shankar Mishra and Sri P.K. Singh, learned counsels for opposite party no. 2 and the learned AGA for the State-respondents.
Learned counsel for the revisionist contends that opposite party no. 2 is accused along with his father of double murder committed by them in day-light near Vindhwasni Temple. Manner of the murder has been done reflect the mature mind of the opposite party, therefore, protection under Juvenile Justice Act is not for such accused who commits heinous crime. Granting relaxation of being juvenile would certainly defeat the end of justice because blanket liberty has not been granted to the juvenile in all cases. It is further contended that depravity of mind of opposite party no. 2 is very much manifest. Such person cannot be allowed to succeed so as to dupe the course of justice in heinous offences. In this regard, learned counsel for the revisionist has relied upon a judgment of this Court of another Bench in the case of Monu @ Moni @ Rahul @ Rohit Vs. State of U.P. [2011 (74) ACC 353] in which it has held that observation of the Board is that his association is with unwanted persons and there is no control over him of his widowed mother. Moreover, no male relative there to keep control over the revisionist. In these circumstances, bail of the revisionist will defeat the end of justice.
Learned counsel for the revisionist has again relied on the case of Om Prakash Vs. State of Rajasthan and another [2012 (77) ACC 654] in which the Hon'ble Apex Court observed that Juvenile Justice Act which is certainly meant to treat a child accused with care and sensitivity offering him a chance to reform and settle into the mainstream of society, the same cannot be allowed to be used as a ploy to dupe the course of justice while conducting trial and treatment of heinous offences. This would clearly be treated as an effort to weaken the justice dispensation system and hence cannot be encouraged. Again the learned counsel relied upon a judgment of the Hon'ble Apex Court in the case of Virendra Vs. State of U.P. [2014 (6) ADJ 694] in which it has held that in view of the Juvenile Justice Act exposure of juvenile to moral, physical and psychological danger made a ground to refuse bail. Bail can also be refused on ground that release would defeat ends of justice. However, ends of justice not defined under the Act but anything that militates against justice would result in defeating ends of justice. The Hon'ble Apex Court in the case of Parag Bhati (Juvenile) through Legal Guardian Mother Smt. Rajni Bhati Vs. State of U.P. and another) [2016 (95) ACC 552] has held that accused involved in grave and serious offence which he committed and gave effect to it in a well planned manner reflecting his maturity of mind rather than innocence. Plea of juvenility of accused more in nature of shield to dodge or dupe arms of law.
Per contra, learned AGA contends that in this case two persons have lost his life as a result of ante-mortem gun shot injuries inflicted by co-accused Gian Chandra Pandey, father of the opposite party no. 2. The injury inflicted by the delinquent juvenile are not fatal because in the post-mortem of two deceased the cause of death were due to ante-mortem fire arm injuries assigned to father of juvenile. The injury caused by bhunjali seems to have caused them no serious injury but nature of the crime shows the criminal maintainability of the juvenile.
Sri Daya Shankar Mishra, learned counsel for the opposite party no. 2 has contended that District Probation Officer has reported that the juvenile is the student of 12th class of which Social and Economic Status is common and his conduct is reported as good. There is no criminal antecedent reported against the credit of the juvenile but require proper control for which his mother has also filed an affidavit to take care of his juvenile son. Learned counsel for the opposite party no. 2 submitted that it is natural instinct to accompany his father during altercation and there is no serious injuries said to be caused by the juvenile. His role come within the sphere of offence under Sections 324 which is bailable.
If we go by the statutory mandate, bail in case of a juvenile in conflict with law, is a general rule whereas refusal is an exception. Such refusal has also to be in consonance with the grounds mentioned in Section 12, which is reproduced below:
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 ( or placed under supervision of a Probation Officer or under the care of any fit institution or 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.
(2) When such person having been arrested is not released on bail under sub-section (1) by the officer incharge of the police station, such officer shall cause him to be kept only in an observation home in the prescribed manner until he can be brought before a Board.
(3) When such person is not released on bail under sub-section (1) by the Board it shall, instead of committing him to prison, make an order sending him to an observation home or a place of safety for such period during the pendency of the inquiry regarding him as may be specified in the order."
Delhi High Court in Mohd. Feroz alias Bhola Vs. State, (LAWS) (DLH) 2005-3-106, after referring to section 12 of Juvenile Justice (Care and Protection of Children )Act, 2000, has held as under:
"The aforesaid Section makes it mandatory for a person to be released if such person is apparently a juvenile unless of course, there are reasonable ground for believing that the release of such person 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. No such fears have been raised on the part of the prosecution. The learned counsel for the State, however, submitted that the petitioner is accused of directly committing the murder of the deceased by use of a knife and he should be shown no mercy. This is not a question of mercy. The provision is mandatory and stipulates that such a person who is apparently a juvenile "shall" be released on bail notwithstanding anything contained in the Code of Criminal Procedure. 1973 or in any other law for the time being in force subject only to the condition mentioned above in respect of which no fears have been raised by the prosecution."
In Master Niku Chaubey Vs. State, 2006 (2) JCC 720; Delhi High Court held that the nature of the offence is not a consideration for grant of bail, to the juvenile. The only considerations are those spelt out by Section 12, which requires bail to be granted unless the court feels that the release of the juvenile is likely to bring him into association of any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice. It has been also held that seriousness of the allegations or gravity of the charges are not relevant in the case of a juvenile accused's request for bail.
In the case of Vijendra Kumar Mali v State of U.P. 2003 (1)JIC 103 this Court has held as under:
"This Court in a number of judgments has categorically held that bail to the juvenile can only be refused if anyone of the grounds existed. So far as the ground of gravity is concerned, it is not covered under the above provisions of the Act. If the bail application of the juvenile was to be considered under the provisions of the Code of Criminal Procedure, there would have been absolutely no necessity for the enactment of the aforesaid Act. The language of Section 12 of the Act itself lays down that notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law for the time being in force, the juvenile accused shall be released. Not only this, the Parliament re-considered the entire matter and repealed the old Act of 1986 by introduced the new Act No. 56 of 2000, raising the age from 16 to 18 years. This has been done keeping in view the welfare of the child so that even after committing an offence a child may not become a hardened criminal but he may reform himself."
This Court in the case of Amit Kumar Vs. State of UP, 2010 (71) ACC 209 (Alld) has expressed the similar view and has granted bail to the juvenile offender in heinous offence and held that seriousness of offence is no ground to reject the bail to a juvenile.
In this case, there is nothing either on record or in the report of the Probation Officer that after the release the revisionist would come in association with any known criminal or his release would expose him to moral, physical or psychological danger. In the post-mortem report of the two deceased, the cause of death were shock and hemorrhage as a result of gun shot injuries which were assigned to be caused by co-accused Gian Chandra Pandey, father of juvenile. The role assigned to the juvenile is only to cause incised wounds to the injured as well as to the deceased which was not opined as fatal. It is definitely not an aggravating factor which shows the depraved and perverse mind set, as such this court is of the opinion that granting bail to such juvenile would not defeat the end of justice.
Taking in view the entire spectrum of facts and circumstances, materials available on record and legal position, I do not find any error or illegality in the impugned order dated 5.5.2015 passed by the Sessions Judge, Mirzapur and as such the impugned order is liable to be confirmed.
Accordingly, the revision is dismissed. The interim order, if any, is vacated. There is no order for cost.
Order Date :- 20.9.2016 AK