Allahabad High Court
Akash Kumar Knnojia vs State Of U.P. And Another on 22 July, 2021
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 1 Reserved Case :- CRIMINAL REVISION No. - 1131 of 2020 Revisionist :- Akash Kumar Kannojia Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Sadhu Sharan,Lalit Kumar Tripathi, Navneet Kumar Mishra,Syed Mohammad Abbas Abdy Counsel for Opposite Party :- G.A. Connected with Case :- CRIMINAL REVISION No. - 1093 of 2020 Revisionist :- Akash Kumar Kannojia Through His Legal Guardian Moher Suman Devi Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Sadhu Sharan,Lalit Kumar Tripathi, Navneet Kumar Mishra,Syed Mohammad Abbas Abdy Counsel for Opposite Party :- G.A. Hon'ble J.J. Munir,J.
1. Both these Criminal Revisions are directed against the orders of Mr. Jai Prakash, the 5th Additional Sessions Judge/ Special Judge (POCSO), Ghazipur dated 02.03.2020 dismissing Criminal Appeal nos.09 of 2020 and 10 of 2020, respectively, and affirming orders of the Juvenile Justice Board, Ghazipur dated 31.01.2020, refusing bail pending proceedings to the revisionist in Case Crime no.175 of 2019, under Sections 307/34 IPC, Police Station Mardah, District Ghazipur and Case Crime no.113 of 2019, under Sections 394, 323, 411 IPC, Police Station Birano, District Ghazipur.
2. Since the revisionist's implication in Case Crime no.113 of 2019, under Sections 394, 323, 411 IPC, Police Station Birano, District Ghazipur is consequential to his involvement in Case Crime no.175 of 2019 (supra), Criminal Revision no.1131 of 2020 is being decided as the leading case.
3. Service of notice upon the complainant/ opposite party no.2 is adequate, in view of the report of the Chief Judicial Magistrate, Ghazipur dated 07.08.2020, insofar as the leading case is concerned. So far as Criminal Revision no.1093 of 2020 is concerned, a perusal of the office report dated 30.09.2020 and last reiterated on 02.011.2020 shows that opposite party no.2 has been served in person. This report of the office is based on a report from the Chief Judicial Magistrate, Ghazipur placed at Flag-A. In view of the said report, service upon opposite party no.2 in the connected Revision is also held good.
4. According to the First Information Report giving rise to Crime no.175 of 2019, the revisionist, along with four other co-accused, has been implicated in Crime no.175 of 2019, under Sections 307/34 IPC, Police Station Mardah, District Ghazipur, which is a case of encounter with a police party, with no injury sustained. The substance of the FIR giving rise to the present crime is that the police was galvanized into action from the report of a police informer that perpetrators of robberies, committed in the local limits of Police Stations Birnu and Mardah, were on way riding the looted motorcycles to commit some other crime. It was allegedly revealed by the informer that these miscreants were moving from the direction of Bihari Pokhra, Kasimabad towards Bharsar. The First Information Report shows that the police party, acting on the information, laid in wait to apprehend the miscreants at a strategic point, concealing themselves behind foliage and switching off headlights of their vehicles. After sometimes, two motorcycles were seen on the road, proceeding from the direction of Bihari Pokhra. The informer pointed out to those vehicles as ones being ridden by the miscreants. The motorcycles were ordered to stop by the police, whereupon one of the riders is said to have accosted another with words to the effect (in Hindi vernacular): रुक पुलिस है अभय गोली मार दो नहीं तो सभी पकड़ जायेगें।.
5. It is then said that co-accused Abhay thereupon opened fire at the police party with the intent to kill. The Police say in the FIR that they saved themselves from the assault by dint of their training, whereas the miscreants turned their vehicles around and attempted to escape. It is then said that both the motorcycles slipped and hit the ground. The police further go on to say they chased the miscreants and managed to overpower one of them, whereas the others, taking advantage of the darkness and foliage, made good their escape. The one apprehended identified himself as Abhay son of Triloki Yadav, resident of Village Fatehpur, P.S. Kasimabad, District Ghazipur. He said that he was 22 years old. Upon a search of his person, a country-made pistol of 0.315 caliber was recovered, that had an empty in its barrel, whereas from the left side pocket of his pants, a live cartridge of 0.315 caliber was recovered. The apprehended man disclosed identity of the other four co-accused as Pradeep Bind, Aakash Kanaujia (the revisionist), Abhishek Yadav and Deepak Kanaujia.
6. This First Information Report records a confession about two incidents of loot committed by the apprehended co-accused Abhay Yadav and the other co-accused, that includes the revisionist, details whereof are mentioned there. The two motorcycles recovered were said to be each connected to Case Crime no.113 of 2019, under Sections 323, 394 IPC, Police Station Birano, District Ghazipur and Case Crime no.155 of 2019, under Section 379 IPC, Police Police Station Mardah, District Ghazipur. It has also been recorded in the FIR that both the vehicles were identified by their respective owners, who were present on the spot when the co-accused Abhay was apprehended. On the basis of the aforesaid FIR, the present crime was registered against the revisionist and the other co-accused. Alongside, the revisionist was challaned in connection with Case Crime no.113 of 2019, under Sections 323, 394 IPC, Police Station Birano, District Ghazipur.
7. The revisionist was declared a juvenile in Case Crime no.175 of 2019 (supra) as also in Case Crime no.113 of 2019 vide orders dated 07.01.2020 separately passed by the Juvenile Justice Board. In Case Crime no.175 of 2019, the revisionist was held to be a juvenile, aged 14 years 3 months and 16 days on the date of occurrence, whereas in Case Crime no.113 of 2019, he was held to be a juvenile, aged about 14 years 3 months and 14 days on the date of occurrence.
8. The revisionist made a bail application in Case Crime no.175 of 2019, under Sections 307/34 IPC, P.S. Mardah, District Ghazipur to the Juvenile Justice Board, Ghazipur being Bail Application no.68 of 2019. The said bail application came to be rejected vide order dated 31.01.2020. He carried an appeal to the learned to the learned Sessions Judge from the said order, which has come to be dismissed by the order impugned passed in the leading case.
9. Likewise, the revisionist made an application for bail to the Juvenile Justice Board, Ghazipur in Case Crime no.113 of 2019, under Sections 394, 411 IPC, P.S. Birano, District Ghazipur. The said application, being Bail Application no.69 of 2019, was rejected by the Juvenile Justice Board vide order dated 31.01.2020. The revisionist carried an appeal from the said order to the learned Sessions Judge, which has been dismissed by the order impugned, that is challenged in Criminal Revision no.1093 of 2020.
10. Aggrieved, both these Revisions have been instituted.
11. Heard Mr. S.M.A. Abdy, learned Counsel for the revisionist and Mr. S.S. Tiwari, learned A.G.A. appearing on behalf of the State.
12. It is submitted by the learned Counsel for the revisionist that the revisionist has not been apprehended on the spot in Case Crime no.175 of 2019, under Sections 307/34 IPC, P.S. Mardah, District Ghaziabad. His implication has come in that case on the basis of a confession attributed to co-accused Abhay Yadav, made while in police custody. It is also urged that there is no recovery from his possession. The identification of the looted motorcycles, subject matter of Crime no.113 of 2019 (supra) by its owners, has been got up by the Police in order to falsely implicate the revisionist and the other co-accused.
13. It is argued that the revisionist hails from a respectable family and belongs to the mainstream of life. He has been picked up from home and implicated in the present crimes contemporaneously, in order to show efficient police work. Overall, it is said by the learned Counsel for the revisionist that this false implication is the result of a mixed motivation for the Police to restore a looted vehicle to its owner, that has been found somewhere else under different circumstances and also to show good police work.
14. In particular, the learned Counsel for the revisionist has drawn the attention of the Court to the social investigation report, which he says clearly shows the good background of the revisionist, with no criminal record.
15. Mr. S.S. Tiwari, learned A.G.A. submits that the revisionist is a boy, who is less than 15 years and a budding criminal. He is involved in one incident of robbery, besides a case of engaging in an armed encounter with the Police. He submits that these are daring offences for a teenager to commit, and unless the revisionist undergoes the maximum permissible institutional incarceration, there is every likelihood that he will come into association with known criminals, that would lead to the revisionist facing physical, psychological and moral danger. It is, therefore, said by the learned A.G.A. that the revisionist's case does not pass muster, at least under two of the three disentitling contingencies postulated under the proviso to Section 12(1) of the Act of 2015.
16. This Court has keenly considered the rival submissions and perused the records.
17. What this Court must notice at the outset is that for a juvenile, the universal rule is one of bail pending proceedings as envisaged under Section 12(1) of the Act of 2015. Bail can be denied to a juvenile in the circumstances enumerated under the proviso to Section 12(1) of the Act of 2015. Section 12 reads:
"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 sub-section (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."
18. A reading of the FIR and the overall circumstances in which the revisionist has been implicated in the present crime show that prior to the present case, he had no criminal history. His family too have no criminal history. A perusal of the social investigation report, that has been brought on record through a supplementary affidavit dated 14.10.2020, projects the revisionist to be a boy hailing from a respectable and educated family in the mainstream of life. The revisionist's family do not appear to be delinquents of any kind. The revisionist's father is aged 42 years. He is a matriculate and is in good employment, where he earns a monthly salary of Rs.40,000/-. The mother is 38 years old and also a matriculate. She is a housewife. The revisionist has an elder sister aged 17 years, who is a student of Class-XII. The revisionist is reported to be a student of Class-IX. There are significant remarks in the social investigation report, where it is said that it was not found that the revisionist had any problem (presumably affecting his behaviour or life). It is mentioned in column 6 of the concluding part of the report thus (in Hindi vernacular):
"किशोर के सम्बंध में पूछ ताछ के दौरान बताया गया कि अपचारी किशोर कक्षा 9वीं का छात्र है। किशोर अपने मित्रों के साथ अक्सर इधर-उधर आता जाता तथा घुमता फिरता रहता था। जिस कारण मित्रों के बुरे संगत में रहने के कारण किशोर का नाम इस केस में आया बताया गया। जाँच में किशोर के परिवार का पूर्व में कोई अपचारिता का रिकार्ड संज्ञान में नहीं आयी।"
Likewise, in column 8 of the report, it is recorded (in Hindi vernacular):
"पूछ ताछ के दौरान बताया गया कि अपचारी किशोर के पिता आर्मी में नौकरी करते हैं। प्रथम दृष्टया जाँच में किशोर के परिवार की सामाजिक एवं आर्थिक स्थिति सम्पन्न प्रतीत होती है। किशोर की सुधार हेतू व गलत मित्रों से दूर रखते हुए किशोर का उचित देख रेख एवं संरक्षण में रखे जाने की आवश्यकता है। मा0 न्यायालय उचित निर्णय लेना चाहे।"
19. A perusal of the impugned orders passed by the two Courts below show that both the Courts have been moved by the fact that the revisionist was involved in two crimes. They have, therefore, concluded that his case falls into all the three exceptions postulated under the proviso to Section 12(1) of the Act of 2015. This Court does not think so. This is a case of contemporaneous implication for the revisionist, all at one go. Prior to the present crime, he had no history. His family have no criminal history. All the members of his family appear to be gainfully employed or productively engaged. None of them, including the revisionist, appear to be going directionless. This Court must also remark that the prosecution case, subject to whatever is established at the trial, does not inspire that kind of a spontaneous confidence, where a false implication may be possible to rule out.
20. Given these facts and the mandate of Section 12 of the Act of 2015, this Court is of opinion that there is no warrant for us to infer that the revisionist's case is one that falls into any of the three exceptions postulated under Section 12(1). Both the revisions deserve to succeed.
21. For the reasons mentioned here in this judgment, separate orders allowing Criminal Revision Nos.1093 of 2020 are being recorded in the relative Revision, setting aside and reversing the impugned orders passed in that case.
22. In the result, Criminal Revision No.1131 of 2020 succeeds and is allowed. The impugned order dated 02.03.2020 passed by the learned 5th Additional Sessions Judge/ Special Judge (POCSO), Ghazipur in Criminal Appeal No.10 of 2020 and the order dated 31.01.2020 passed by the Juvenile Justice Board, Ghazipur in Bail Application No.69 of 2019 are hereby set aside and reversed. The bail application of the revisionist stands allowed.
23. Let the revisionist, Akash Kumar Kannojia through his natural guardian mother Suman Devi, wife of Kamlesh Ram be released on bail in Case Crime no.113 of 2019, under Sections 394, 323, 411 IPC, Police Station Birano, District Ghazipur upon his natural guardian 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, Ghazipur subject to the following conditions:
(i) that the natural guardian mother 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 natural guardian will report to the District Probation Officer on the first Monday of every calendar month, commencing with the first Monday of August, 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, Ghazipur on such periodical basis as the Juvenile Justice Board may determine.
(iv) The party shall file computer generated copy of this order downloaded from the official website of High Court Allahabad, which shall be self attested by the counsel of the party concerned.
(v) The Court/Authority/Official concerned shall verify the authenticity of the computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of verification in writing.
Order Date :- 22.7.2021 Anoop