Allahabad High Court
Fazil @ Avesh vs State Of U.P. on 9 April, 2018
Equivalent citations: AIRONLINE 2018 ALL 4244, 2018 (4) ALJ 699, (2018) 190 ALLINDCAS 733 (ALL), (2018) 3 ALLCRIR 2269, (2018) 104 ALLCRIC 876
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 53 Case :- CRIMINAL REVISION No. - 279 of 2018 Revisionist :- Fazil @ Avesh Opposite Party :- State Of U.P. Counsel for Revisionist :- Narendra Deo Shukla,Umesh Chandra Prajapati Counsel for Opposite Party :- G.A.,Vikas Tiwari Hon'ble J.J. Munir,J.
Heard Sri N.D. Shukla, learned counsel for the revisionist, Sri Vikas Tiwari appearing for O.P.No.2 and Sri Kamal Singh Yadav, learned AGA appearing for the State.
This criminal revision is directed against an order of Sri Pushker Upadhyay, Additional Sessions Judge/Fast Track Court, 1st, Jhansi dated 01.12.2017 dismissing the criminal appeal no. 12/2017 and affirming an order of the Juvenile Justice Board, Jhansi dated 27.10.2017 passed in Bail Application No. 69/2017 relating to Case Crime No. 396 of 2016, under Sections 354B, 323, 324, 506 IPC and Section 8 of POCSO Act, P.S. Mauranipur, District Jhansi refusing bail to the applicant who claimed as a juvenile under Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as "the Act").
The brief facts giving rise to the present revision are that the first informant-opposite party no.2 lodged an FIR with regard to an occurrence dated 20.09.2016 at 9:00 in the evening hours saying that his daughters Rakhi and Nishi besides his wife Usha had all gone to the Mela at Jalvihar and were proceeding to the Mela ground in Mauranipur when they were stopped on way by the revisionist along with three unknown persons allegedly telling them that they should come along with him to enjoy the Mela, to which the informant's daughter and wife protested telling the revisionist not to bother them. It is further said in the FIR that the informant's elder daughter aged about 17 years and the younger Nishi aged about 16 years were together. The revisionist with an intention to outrage their modesty caught hold of the younger daughter's hand that led the daughters to raise alarm. In consequence, Shashi Kant, Kamlesh and others came by and seeing that the revisionist and his companion beat up the informant's daughter and made good their escape threatening them with death. Nothing else was said in the FIR that was registered on 21.09.2016 at about five minutes past noon whereas the occurrence had allegedly taken place on 20.09.2016 at 9:00 p.m. The prosecution relied upon a medico-legal report of the injuries sustained in the assault by the younger daughter Km. Nishi who was examined for her injuries on 21.09.2016 at 17 minutes past noon where the doctor noticed an incised wound, muscle deep on the side of the forearm, 12 cm below the left elbow, and, another linear abrasion on the left palm. Both injuries were opined to be simple in nature caused by a sharp object. The report clearly mentioned that time of injuries is about two days old. A copy of the injury report is annexed as Annexure-2 to the affidavit in support of the revision.
The revisionist was arrested and sent to jail where he is in custody since 09.01.2017. The revisionist was declared a juvenile by an order of Additional Sessions Judge/Special Judge, POCSO Act vide order dated 31.07.2017.
The revisionist moved for bail as a juvenile to the Juvenile Justice Board through Bail Application No. 69 of 2017 which came to be rejected by an order dated 27.10.2017 passed by the Juvenile Justice Board, Jhansi.
Aggrieved by the order of Juvenile Justice Board rejecting his bail application the revisionist preferred an appeal under Section 101(5) of the Act to the Sessions Judge, Jhansi that was numbered as Criminal Appeal No. 12/2017 and came up for determination before the Additional Sessions Judge/Fast Track Court 1st, Jhansi on 01.12.2017 and was dismissed.
Aggrieved by the refusal of bail by the two courts below, this revision has been preferred by the Juvenile.
Sri N. D. Shukla, learned counsel for the revisionist has submitted that courts below have not assessed the revisionist's prayer for bail within the well established parameters of section 12 of the Act, which reads as under:
"Section 12 - Bail to a person who is apparently a child alleged to be in conflict with law:
(1) 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 (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 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.
(4) When a child in conflict with law is unable to fulfil the conditions of bail order within seven days of the bail order, such child shall be produced before the Board for modification of the conditions of bail."
Sri Shukla, submits that a perusal of the impugned judgment including the one passed by the appellate court shows that both the courts have inferred from the gravity of the allegations primarily that the applicant in the event of release is likely to come into association with known criminals and would be exposed to moral, physical and psychological danger as the offence alleged against him shows that his father has no control over the juvenile and his company is bad. Learned counsel submits that these inferences on the basis of which bail has been refused are not based on relevant evidence and also suffer from the vice of non-consideration of material evidence, in particular a wholesome evaluation of the report of the District Probation Officer of which a lopsided view has been taken by both the courts below.
It has further been submitted that the decisions of both courts appear to be more influenced by the nature of the allegations and a documentary evidence appearing against the applicant on the basis of which they have concluded apparently that the revisionist is involved in the commission of a heinous offence. It has further been submitted by learned counsel for the revisionist that courts below have ignored from consideration the report of the District Probation Officer dated 12.10.2018 which shows eloquently that the conduct of the Juvenile has been good and there is no criminal case pending against him; that he is a student of High School and regularly attends school which does not tend to show that he would, in the event of release, come into association with any known criminal or be exposed to moral, physical or psychological danger.
Learned counsel for the revisionist has also emphasized that the courts below have also misconstrued the nature of the offence to be a heinous one and attached more than due weightage to the evidence in support of a prima facie commission of the offence alleged. He points out that going by the prosecution story as disclosed in the FIR and the statement of the prosecutrix under Section 164 Cr.P.C. it appears that there are two episodes: one on the date of the incident and the other had already happened on 19.07.2017, where the prosecutrix has alleged that she had received a stab wound from the revisionist while she was at home but the first informant while lodging the FIR on 21.07.2017 has only mentioned the occurrence dated 20.07.2017 that happened at the Mela with no allusion to occurrence dated 19.07.2017 where the prosecutrix allegedly received the stab wound. This makes the prosecution case highly doubtful on its merits.
The learned AGA has opposed the relief claimed in the revision and submits that the prosecution shows the commission of a very heinous offence, including one under Section 354B IPC besides Section 8 of POCSO Act; that there are injuries sustained by the victim, one of them being a incised wound, and, further that there is a statement of the victim under section 164 Cr.P.C. recorded on 01.10.2016 before the Judicial Magistrate, where she has spoken of the incidents dated 19.09.2016 and 20.09.2016 which go to show that the juvenile has persisted in his effort to outrage her modesty and also stabbed her in the hand. In the submission of the learned AGA, the revisionist if granted bail would certainly come into association with known criminals, and, would suffer moral, physical and psychological danger as he is not in the control and discipline of his father. He further submits that grant of bail to the revisionist would defeat ends of justice looking to the gravity of the offence which is a valid consideration to refuse bail as done by the courts below.
Having given an anxious consideration to the rival submissions on behalf of both sides this Court in the first instance finds that there is no such evidence on record which may show that the juvenile/child in conflict with the law, if released on bail would come into association of any known criminal or that his release from jail would expose him to moral, physical or psychological danger. In this connection this Court has perused the report of the District Probation officer which shows him to be a average child who lives in a family comprising his father, two sisters and a brother. The parents are also educating them. The brother is a student of B.A. IInd year whereas one sister is a student of B.A. 1st year and another sister, a student of High School. The relationship between the juvenile on the one hand and his mother, father, brother and sisters is also recorded to be friendly. There is also a grand mother at home who is recorded to be friendly towards the juvenile. The criminal history of the family show that for all of them it is virtually not there except the father who is said to have been involved in an offence involving some fight of which he was acquitted.
The report further shows that the juvenile does not smoke, is a teetotaller, does not gamble, watches TV for a hobby and plays cricket. It also records that he is a student of High School and for extra curricular activities has joined the National Cadet Corps (NCC). It is also recorded that outlook and interaction of the juvenile with his friend is normal and relations with his neighbours are good. It is also recorded that the juvenile has not been involved in any incident of bad behaviour. It is specifically recorded that the juvenile has no criminal history. However, in the concluding part of the report there is a sudden incongruent turn where the cause for the crime has been marked in the column as neglect by the father and mother. The emotional cause of the crime has been mentioned as one sided attraction or so to speak, platonic love. The cause of the problem has been indicated to be a lack of control and bad company though it is mentioned that it is the juvenile's first offence. In the recommendation column or summery of opinion of the District Probation Officer, it is recorded in Hindi vernacular (translated into English script):
"Uperyukt Tathyeo Ke Aadhar Per Kaha Ja Sakta Hai Ki Pita Dwara Niyantran Na Rakh Pane, Galat Sangati Ke Karan Aparadh Karit Hua Swasi Ka Pratham Aparadh Hai"
This Court is constrained to observe that the earlier observations of the District Probation Officer in the substantial part of the report are incongruent with his conclusions recorded in the few columns of the last page. This is apparently on account of fact that he appears to have written those incongruant responses under the shadow of the crime being projected as heinous, in all probability, due to extraneous pressure by the investigating agency/police, else the objective evaluation of the juvenile does not at all portray him to be a child who would appear to be involved in a crime as the present one or in the event of release likely to come into association with any known criminal or be exposed to moral, physical or psychological danger.
His family appears to be reasonably educated and well knit, with brothers and sister reading in different courses of intermediate and graduate education, and, relationship amongst the family between its various members, quite friendly. There is also a friendly grand-mother in the family. The juvenile is also a student of High School and an enthusiast in the NCC. There is also no history of misbehaviour with neighbours or a criminal history. This kind of a profile does not go happily with the concluding remarks of the District Probation Officer which alone appear to have been taken into consideration by the two courts below in deciding to deny bail to the revisionist. This in the opinion of the Court would take care of the first two parts of the proviso to Section 12 of the Act. What remains to be seen is whether releasing the applicant on bail would defeat the ends of justice.
In the most part to defeat the ends of justice is a requirement that obliges the Board or the Court hearing a juvenile's plea to consider, amongst other things, also the gravity of the offence and its impact on the society that would involve as one of the considerations, the prima facie evidence showing complicity of the juvenile in the offence, as in the case of any bail by an adult offender. The aforesaid parameter is eloquently expressed by the decision of this Court in Nitin Pal (minor) vs. State of U.P., 2015(2) JIC 229 (All) where in paragraphs 11 and 12 of the report it has been held thus:-
"11. In view of the mandate aforesaid, it is obvious that if the aforesaid conditions are existing and there is reasonable likelihood of minor coming into association with any known criminal or he is likely to be exposed to moral, physical or psychological danger or his release would defeat the ends of justice, then the bail to the delinquent juvenile in conflict with law will not be allowed.
12. Even as per settled position of law, the merits/gravity of the offence will not be the sole guiding factor for disposal of the bail application of the delinquent juvenile in conflict with law. It is true that the first information report has been lodged against the revisionist under Section 376(2) (g) and 364 I.P.C. but gravity of the offence loses significance in view of the report of the District Probation Officer dated 20.07.2013 annexed as annexure no.11 to the affidavit filed in support of this revision, wherein, it has been specifically stated that the parents of the minor are willing to reform their child. This positively indicates that parents are ready to take custody of their son with a will to improve upon his life."
A look at the allegations as mentioned in the FIR leaves one to wonder as to why the first informant while lodging the FIR on 21.09.2016, about the occurrence that happened on 20.09.2016, almost 12 hours prior in point of time, did not mention of an earlier occurrence of 19th September 2016 where according to the statement of the prosecutrix the juvenile had entered her house, attempted to outrage her modesty, and, stabbed her in the palm. If those events had happened on 19.09.2016 there is no earthly reason why the first informant, who is the father of the prosecutrix would not mention those facts of the occurrence of 19th September in the FIR lodged on 21st September. In the opinion of this Court, the aforesaid omission prima facie places the prosecution story in a cloud of serious doubt.
It is also noteworthy that the allegations in the FIR or in the statement of the prosecutrix recorded under Section 164 Cr.P.C. prima facie do not disclose commission of an offence under Section 354 B IPC. The FIR only speaks about touching and holding the prosecutrix's hand and that of her sister which though by no means a conduct that can be approved, would not fall within the mischief of Section 354B IPC. Likewise, rather the more serious allegation of touching the prosecutrix in some intimate part of her body in the alleged occurrence of 19th September, if true, though all the more reprehensible would also not fall within the mischief of Section 354B IPC. This is so as Section 354B which is an aggravated form of the offence of assault or criminal force to women with intent to outrage her modesty in Section 354 IPC postulates "an act by any man who assaults or uses criminal force to any woman or abets such acts with the intention of disrobing or compelling her to be naked,...................." This by no means is the case of the prosecution against the delinquent which prima facie excludes the revisionist's liability under Section 354B IPC where the minimum sentence prescribed is not less than three years but may extend to seven years.
Thus, seen the prosecution, prima facie, appears to be not only on some shaky ground but does not involve prima facie the commission of an offence under Section 354B IPC. The latter part of the offence under Section 354B assumes some more importance as it has a minimum sentence prescribed whereas in the present case the revisionist has already done a year and a quarter in jail having been remanded to custody on 09.01.2017.
Both the courts below have recorded their findings unmindful of the aspects noticed above and without bestowing consideration to the relevant evidence, the parameters of law applicable to the facts, the evidence on record and have rather cursorily dealt with the matter to refuse bail to the juvenile/child in conflict with law. In the opinion of this Court, though juveniles who are potent danger to the society are not entitled to seek refuge of the Act but it is equally true that a juvenile against whom an offence is alleged for the first time, and, the truth of the allegations are yet to be tested, should not to be deprived of the benefit of the Act going more by the lebel of the offence alleged than the substance of it. This is where precisely in the opinion of this Court both the court's below have faltered.
In the result, this revision succeeds and is allowed. The impugned orders dated 01.12.2017 passed by learned Additional Sessions Judge 1st/Fast Track Court, Jhansi in Criminal Appeal No. 92 of 2017, Fazil @ Avesh vs. State of U.P., and the order dated 27.10.2017 passed by the Juvenile Justice Board, Jhansi in Bail Application No. 69 of 2017 (State vs. Avesh) are hereby set aside and reversed. The bail application filed by the revisionist stands allowed.
Let the revisionist Fazil @ Avesh be released on bail in case crime no. 396/2016, under Sections 354B, 323, 324, 506 IPC and Section 8 of POCSO Act, P.S. Mauranipur, District Jhansi through his father and natural guardian Sarafat Hussain s/o Vashir Hussain on his father executing a personal bond and two solvent sureties of his relatives each in the like amount to the satisfaction of the Juvenile Justice Board, Jhansi subject to the following conditions:
(i) That the natural guardian/father Sarafat Hussain will furnish an undertaking that upon release on bail the juvenile will not be permitted to go into contact or association with any known criminal or expose to any morale, physical, danger and further that the father will ensure that the juvenile will not repeat the offence.
(ii) That the father will further furnish an undertaking to the effect that the juvenile be placed in a school and encouraged to his studies and not allowed to waste his time in unproductive and mere recreational persuades.
(iii) That the revisionist and his father Sarafat Hussain will report to the District Probation Officer once every Monday from the first Monday commencing with the first Monday of May, 2018 and if during any calendar month first Monday falls to a holiday then on the following working day.
(iv) That the District Probation Officer will keep strict visit to the activities of the revisionist and regularly draw his social investigation report that would be submitted to the Juvenile Justice Board, Jhansi on such periodical basis as the Juvenile Justice Board chooses.
Order date: 09.04.2018 Imroz