Allahabad High Court
Kuldeep Minor vs State Of U.P. And Another on 22 November, 2019
Equivalent citations: AIRONLINE 2019 ALL 2214
Author: Narendra Kumar Johari
Bench: Narendra Kumar Johari
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved On : 30.10.2019 Delivered On: 22.11.2019 Court No. - 85 Case :- CRIMINAL REVISION No. - 1451 of 2017 Revisionist :- Kuldeep Minor Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Umesh Yadav,Awadhesh Kumar,Babu Lal Ram,Nayab Ahmad Khan,Ravindra Sharma Counsel for Opposite Party :- G.A. Hon'ble Narendra Kumar Johari,J.
1. The instant Revision has been filed on behalf of Revisionist-Kuldeep (minor) S/o Gautam through his uncle Subhash Chandra S/o Jiv Rakkhan, against the order dated 16.03.2017 passed by Additional Sessions Judge, Court No.1, Jaunpur in Criminal Appeal No.37 of 2017 (Kuldeep Vs. State), arising out of Case Crime No.664 of 2016, under Section 302, 411, 394, 34, 120-B I.P.C., Police Station-Kheta Sarai, District-Jaunpur.
2. Heard learned counsel for the revisionist, learned A.G.A. for the State and perused the record.
3. Opposite party no.2 has been served personally, but he did not turn up before this Court.
4. The fact of the case in brief is that complainant-Ram Teerath has lodged the F.I.R. on 19.09.2016 at about 11.30 a.m. stating that his maternal brother-Lalji is a teacher in Delhi. At present, Lalji along with his mother-Bhagirathi and son-Rinku is residing at Delhi. His wife-Sudama Devi is alone residing in her house at Lakhmapur. Lalji telephonically called complainant and said that he could not talk to his wife, as mobile-phone of his wife-Sudama Devi is switched off for last 2-3 days. He further directed him to go his residence and arrange talks with his wife. On the request of Lalji, complainant along with Gautam, son of Jiv Rakkhan went at the residence of Sudama Devi, he found that room was locked. He watched through window, then he saw that Sudama Devi was lying on the bed in dead condition. There was cut mark on her neck. There was dispute of Sudama Devi regarding the agricultural land and pathway with Vishram, Sochan, Mahendra, Surendra, Revindra and Virendra Kumar, all residents of the same village. Resultantly, they all have murdered Sudama Devi. He created doubt on Ravindra and Virendra Kumar, residents of Lakhmapur also.
5. On the aforesaid F.I.R., investigation was started. During investigation, the name of Gautam Kumar, his wife-Chandrama Devi and son-Kuldeep came into light for committal of murder and Police recovered mobile-phone, ornaments of deceased from them. The weapon-knife has also been recovered. Accordingly, they have been arrested by the police.
6. Revisionist approached Juvenile Justice Board stating that at the time of incident he was minor. Principal Magistrate Juvenile Justice Board vide order dated 05.01.2017 declared him minor as on 19.09.2016 i.e. on date of occurrence, his age was 16 years 2 months 9 days. Revisionist further moved application for granting bail which was rejected by Principal Magistrate, Juvenile Justice Board, Jaunpur on 09.02.2017. Against the said rejection order, revisionist approached Session Court by way of Criminal Appeal No.37 of 2017. Lower appellate court heard the appeal on merits and rejected the same vide order dated 16.03.2017. Against the said rejection order, the instant revision has been filed.
7. Learned counsel for the revisionist has submitted that the mother of revisionist-Smt. Chandrama Devi was released on bail on 08.02.2017 and his father Gautam was also released on bail on 28.02.2017 in Case Crime No.664 of 2016. The present revision has been filed through uncle of minor revisionist on 24.04.2017.
8. Learned counsel for the revisionist has further submitted that revisionist has falsely been implicated in the present case. He has no other previous criminal history. He has not been named in F.I.R. also. There was no motive to commit offence. The mobile-phone as shown recovered from the possession of revisionist has been planted falsely with connivance with real culprit. During the course of the proceedings, Gautam Kumar, father of revisionist has given affidavit on 22.04.2019 stating that if his son be released on bail, he will supervise him and will provide better atmosphere and education him and he will assure that his son will not misuse the liberty on bail and he will not be involved in any criminal activities. Revisionist has been kept in observation home since 04.10.2016. The case of revisionist is still pending in Juvenile Justice Board.
9. Learned counsel for the revisionist has also submitted that Principal Magistrate, Family Court considered the nature of offence and mentioned that there exists reasonable grounds to believe that there is likelihood of minor coming into association with criminals. The observation of learned Principal Judge, Family Court is baseless. There is nothing on record which may indicate any reasonable grounds for so belief. Learned appellate court has rejected the appeal on the ground that the parents of revisionist are accused in the case, if revisionist be released on bail he will fall in their association. The observation of learned appellate court is also erroneous and against the principles of law. The orders of both the courts are based upon the surmises and conjectures.
10. Per contra, learned A.G.A. has contended that considering the nature of the offence, the revision is liable to be dismissed. It has also been argued that the parent of revisionist have committed a heinous offence in which juvenile was also involved. If juvenile will be released on bail he will remain with his parent, then in that case their son (revisionist) will inclined towards criminal mentality. The order passed by the Juvenile Justice Board in declining the bail and also the order passed by appellate court upholding the order of Principal Magistrate, Juvenile Justice Board are based on materials on record.
11. 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. 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 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 fulfill 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."
12. 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.
13. The Act, namely, Juvenile Justice (Care and Protection of Children) Act, 2015 being beneficiary and social reforms oriented legislation, should be given full effect by all concerned whenever matters relating to juvenile comes for consideration before them. 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."
14. Learned Magistrate by its order dated 09.02.2017 has rejected the bail of revisionist mentioning that the offence committed by juvenile is heinous and non-bailable in nature.
15. 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."
16. During enquiry before Juvenile Justice Board, District Probation Officer, Jaunpur has submitted his report indicating that " the social status of juvenile's family is general." Juvenile has good relation with their neighbours. There is no criminal history of juvenile. Elder brother of juvenile is studying at Delhi. The family of juvenile is simple. Involvement of juvenile in offence is doubtful.
17. So far as the reason as indicated by learned Sessions Judge while rejecting the appeal that the parent of delinquent juvenile is also involved in offence as accused, if the juvenile will be released under the supervision of his parents, he will fall in their company which is not good. So far as the observation of appellate court is concern. It is also be kept in mind that although father is involved as accused in the Crime No.664 of 16, yet the trial has not been concluded. This fact has not been disputed by learned A.G.A. It is the cardinal principle of criminal jurisprudence that unless and until the offence is proved, every accused shall be kept in the rank of innocence.
18. 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."
19. No criminal history of his parent has been shown, therefore, in my opinion, the parent of accused will not be treated as "known criminal." The father is natural guardian of delinquent juvenile. The report of District Probation Officer indicates that the delinquent was also a student of class 11th at the time of occurrence. Their another son is already taking education in Delhi. The above fact indicates that the parent of delinquent intends to provide education to their children which is for betterment in their life.
20. A perusal of District Probation Officer's report goes to show that nothing has been written against revisionist in enquiry regarding him as it has been provided in Section 12 (1) of the Act. The bail of the delinquent juvenile could be rejected only on the exigencies or of the grounds mentioned in above exception. Similar view has been expressed in Amit Kumar Vs. State of U.P. reported in 2010 (3) J.I.C. 768 (All) and Naurang Vs. State of U.P. 2010 (71) A.C.C. 255 (All).
21. Keeping in view the fact of the case, arguments advanced by learned counsel for the parties and legal provisions, I find that in present revision no ground is available on the record on the basis of which application of juvenile could be dismissed. Hence, the revision deserves to be allowed. The order dated 09.02.2017 passed by Principal Magistrate, Juvenile Justice Board, Jaunpur and order dated 16.03.2017 passed by Appellate Court are not sustainable in law. Both the courts below could not appreciate the legal position while rejecting bail application of delinquent juvenile.
22. Consequently, the revision is allowed. The aforesaid impugned orders of Principal Magistrate, Juvenile Justice Board and Appellate Court are set aside.
23. It is directed that the revisionist shall be released on bail executing personal bond by his natural guardian/father with two solvent sureties each in the like amount to the satisfaction of Principal Magistrate, Juvenile Justice Board, Jaunpur with the stipulation that on subsequent dates of hearing, he shall produce the delinquent juvenile before the Board during the pendency of the matter. His guardian/father shall also submit an undertaking before the Board that he shall keep proper control and look after the juvenile. He will keep away him from the company of known criminals and will try to improve his future. In case of default, the Board would be competent to cancel the bail of revisionist after giving opportunity of hearing to him.
(Narendra Kumar Johari, J.) Order Date :- 22.11.2019 // SK Goswami