Allahabad High Court
Nitin Kumar @ Tushar (Juvenile) vs State Of U.P. on 9 May, 2019
Author: Pradeep Kumar Srivastava
Bench: Pradeep Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD AFT Court No. - 80 Case :- CRIMINAL APPEAL No. - 3490 of 2019 Appellant :- Nitin Kumar @ Tushar (Juvenile) Respondent :- State Of U.P. Counsel for Appellant :- Anurag Shukla Counsel for Respondent :- G.A. Hon'ble Pradeep Kumar Srivastava,J.
1. Heard Shri Anurag Shukla, learned counsel for the appellant, Shri L.D. Rajbhar, learned AGA for the State and perused the record.
2. Admit
3. Notice need not be given to the learned AGA as he has already received the same on behalf of the State.
4 This appeal has been filed by juvenile Nitin Kumar @ Tushar against the order dated 11.04.2019 passed by the Special Judge (POCSO) Act/ Additional Sessions Judge, Court no. 11, Kanpur Nagar in Bail Application No. 710 of 2019, arising out of Crime No. 113 of 2017, under section 147, 148, 302, 506 I.P.C., P.S. Raipurwa, District - Kanpur Nagar by which the bail application of the juvenile has been rejected by the learned court below.
5. Facts relating to the present appeal are that, in respect of a criminal incident dated 30.07.2017 at 10 p.m. a FIR was lodged against the accused persons in which the name of the juvenile has not been mentioned. It has been submitted by the learned counsel for the accused-appellant that informant in his statement under section 161 Cr.P.C. has stated that instead of writing the name of juvenile, name of one Jitendra has wrongly been mentioned. Aggrieved by the rejection order, the juvenile has filed this appeal challenging the impugned order on the basis that his name was not mentioned in the FIR and in the statement of informant it has come that Chotu assaulted his son by Rapi (weapon/cutting tool usually used by cobbler) and she has stated that the other accused persons were exhorting him. The FIR was ante time and it was stated by the two eye witnesses and the informant that the role of the juvenile was that he was exhorting the co-accused Chotu at the time of incident. Learned counsel for the appellant has submitted that the appellant was falsely implicated in the case because of enmity. He further submitted that nothing incriminating has been recovered from the possession of the appellant and there is no criminal history. As per High School certificate he was born on 10.04.2001 and the Juvenile Justice Board, Kanpur has declared him to be juvenile, therefore, the impugned order is illegal and perverse and against the spirit of Juvenile Justice Act and is liable to be set aside and the juvenile is entitled for bail.
6. The order of the Juvenile Justice Board dated 28.11.2018 has been attached alongwith appeal and from the perusal of the order it is clear that the appellant has been declared juvenile and his date of birth was determined to be 10.04.2001 as per High School certificate and at the time of incident he was 16 years 3 months and 20 days in age and below 18 years. It is why as per the provisions of section 18 (3) of the Juvenile Justice Act his case was transferred to the children court for his trial as adult.
7. Learned A.G.A. has vehemently opposed and has contended that the learned trial court has rightly rejected the bail application on the basis of sufficient evidence available on record against the appellant.
8. Section 12 of Juvenile Justice Act, 2015 by the amended Act the criteria for bail under section 12 of the Juvenile Justice Act has not been changed and provision has been made under Section 12 of the Act that when any person accused of a bailable or a non-bailable offence and apparently a juvenile, is arrested or detained or is brought before a board then irrespective of the accusation he shall be released on bail or placed under the supervision of a probation officer or under the care of any fit institution or fit institution except when
1. if there appear reasonable grounds for believing that the release is likely to bring him into association with any known criminals or
2. that it will expose him to moral, physical or psychological danger, or
3. that his release would defeat the ends of justice.
9. It has been held by the supreme court in Dr. Subramaniam Swamy vs Raju, 2014 (86) ACC 637 that a juvenile has to be released on bail unless the court has a reasonable ground to believe that his release will bring him into association of some known criminal, or will expose him to moral, physical or psychological danger or his release would defeat the ends of justice.
10. Section 15 of the Amending Act only provides for transfer of a juvenile to the Children Court for trial as an adult. Where the child has attained the age of 16 years and has been alleged to have committed heinous offence, the JJ Board is required to conduct a preliminary inquiry with regard to his mental and physical capacity to commit offence, ability to understand the consequence of the offence and the circumstances in which the offence was committed considering their physical, psychological and mental status in commission of crime. Section 18(3) of the Act provides that after making the assessment under section 15, JJ Board comes to a conclusion that there is a need for trial of the child as an adult, the Board may pass an order for the transfer of the trial of the case to the Children Court.
11. It is pertinent to mention here that Section 12 of the Juvenile Justice (Care and Protection of Children) Act has not been amended so far as the parameters and yardstick for granting bail to the juvenile-accused is concerned. Therefore, while rejecting the bail application of such juvenile, it cannot be the criteria that the alleged offence is of serious and heinous nature. The order must show that the grant of bail to the juvenile-accused is against his interest as there is possibility of his being associated with known criminals, or there is some short of moral, physical or psychological danger to him or there is likelihood of end of justice being defeated. All these conditions have been incorporated in law in order to ensure justice to the juvenile.
12 From the perusal of the F.I.R. it is clear that no specific role has been assigned nor the juvenile has been mentioned by name in the FIR. Supposing that the name was wrongly mentioned and it was not Jitendra, it was juvenile, even then the maximum role that was assigned in the statement of informant was exhortation only. This shows that the juvenile is not the sole author of the crime and he was simply accompanying the other accused persons.
13 From perusal of the impugned order, it appears that the learned Children Court has rejected the bail application of the juvenile only on the basis of seriousness and heinousness of the crime and that he was associated with the other co-accused persons at the time of criminal incident.
14 From the perusal of the section 12 of the Juvenile Justice Act, it is clear that the bail to the juvenile is mandatory and it can only be refused in the interest of juvenile, when the court is of the opinion that releasing the juvenile will bring him in the association of some known criminal or he will be exposed to moral, physical or psychological danger or the ends of the justice will be defeated. No finding on this aspect has been recorded while passing the impugned order by the learned Children Court. It has also not been mentioned any where that the report of the Probation Officer was any where adverse to the juvenile.
15. On the basis of the above discussions, I find that there is apparent illegality in the impugned order and therefore, the same is not sustainable, therefore, the impugned order dated 11.04.2019 passed by the Special Judge (POCSO) Act/ Additional Sessions Judge, Court no. 11, Kanpur Nagar in Bail Application No. 710 of 2019 is set aside. Consequently the bail application of juvenile is allowed.
16. The juvenile, accused-appellant namely Nitin Kumar @ Tushar be released on bail and he be given in the custody of his father guardian namely Shiv Kumar on his filing a personal bond and two sureties of the like amount to the satisfaction of the court concerned with undertaking that the guardian father Shiv Kumar shall keep the juvenile away from unsocial and criminal association and will look after his education and health, keeping his mental and social status. He will also give an undertaking that on being so released on bail, the accused-appellant namely juvenile Nitin Kumar @ Tushar will not however indulge in commission of any crime and he will ensure his presence during trial before the court whenever so required by the court below.
17. With the aforesaid direction the present appeal is finally allowed.
18. Office is directed to transmit the certified copy of this order to the court concerned for information and its necessary compliance.
Order Date :- 9.5.2019 Bhanu