Allahabad High Court
Brijesh Yadav @ Lauaa vs State Of U.P. on 24 November, 2023
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:223859 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 43031 of 2023 Applicant :- Brijesh Yadav @ Lauaa Opposite Party :- State of U.P. Counsel for Applicant :- Narendra Singh,Surendra Bahadur Singh Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
1. Heard Mr. Surendra Bahadur Singh, the learned counsel for applicant and the learned A.G.A. for State.
2. Perused the record.
3. This application for bail has been filed by applicant-Brijesh Yadav @ Lauaa seeking his enlargement on bail in Case Crime No. 253 of 2022, under Sections 147, 149, 302 I.P.C., Police Station-Jaswantnagar, District- Etawah during the pendency of trial.
4. Record shows that in respect of an incident which is alleged to have occurred on 22.06.2023, a delayed F.I.R. dated 23.06.2023 was lodged by first informant Suraj Pal (uncle of the deceased) and was registered as Case Crime No. 253 of 2022, under Sections 147, 149, 302 I.P.C., Police Station-Jaswantnagar, District- Etawah. In the aforesaid F.I.R. three persons namely Renu Yadav, Ashish Yadav and Rahul Balmiki have been nominated as named accused, whereas, an unknown person has also been arraigned as accused.
5. After above-mentioned F.I.R. was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. Thereafter, the inquest (Panchayatnama) on the body of the deceased was conducted. In the opinion of the witnesses of inquest (Panch Witnesses) the nature of death of the deceased was categorized as homicidal and the cause of death was said to be head injury sustained by the deceased. Thereafter, post mortem of the body of deceased was conducted. In the opinion of autopsy surgeon who conducted autopsy of the body of deceased, the cause of death of deceased was opined as coma as a result of ante-mortem head injury. The autopsy surgeon found following ante-mortem injuries on the body of deceased:
(1) Contusion in size 3.0 cm x 4.0 cm +nt at right side of forehead. 6.0 cm above from Rt. eye.
(2) Contusion of size 6.0 cm x 5.0 cm +nt at right side of face. Just below right eye.
(3) Contusion of size 1.0 cm x 1.0 cm present at Rt. elbow Jt. (Medially).
(4) Contusion of size 8.0 cm x 5.0 cm present at right side of abdomen (Left.
(5) Contusion of size 2.0 cm x 1.0 cm present at basi of right hand thumb.
(6) Multiple contusion present at Lt. shoulder Jt. with under lying bone fracture.
(7) Multiple contusion present at Lt side of abdomen (totally).
6. During course of investigation of aforementioned F.I.R. Investigating Officer recorded the statement of one Rajesh Kashyap. This witness in his statement on the basis of hearsay evidence has implicated the applicant and others in the crime in question. After recording the statement of aforementioned witnesses, Investigating Officer examined the following witnesses under Section 161 Cr.P.C. (1) Rajesh Kashyap (2) Kamal (3) Rajeev Kumar and (4) Ashish.
7. On the basis of above and other material collected by the Investigating Officer during course of investigation he came to the conclusion that the complicity of three persons namely Sanjay Yadav, Brijesh Yadav @ Lauaa and Ansul is established in the crime in question. He, accordingly, submitted the charge sheet dated 18.09.2022, whereby, aforementioned accused have been charge sheeted under Sections 147, 149, 302 I.P.C., Police Station-Jaswantnagar, District- Etawah.
8. Learned counsel for applicant contends that applicant is innocent. Applicant is not named in the F.I.R. According to the learned counsel for applicant, even though, applicant is a charge sheeted accused, yet he is liable to be enlarged on bail. Present case is a case of circumstantial evidence, therefore, there is no eye-witness of the occurrence. Complicity of an accused in a case based upon circumstantial evidence has to inferred in accordance with the parameters laid down by the Apex Court in Sharad Birdhichand Sarda Vs. State of Maharashtra 1984 AIR 1622. However, upto this stage none of the parameters laid down in aforesaid judgment are satisfied against applicant. No recovery has been made from the applicant not there is any evidence of last seen against the applicant. No motive has emerged against applicant for committing the crime in question. With reference to the judgment of the Supreme Court in Nandu Singh Vs. State of M.P. 2022 SCC Online SC 1434, it is urged by the learned counsel for applicant that motive plays an important link in the chain of circumstances in a case based on circumstantial evidence. In the absence of any strong motive against the applicant, is liable to be enlarged on bail. The applicant has been implicated in the crime in question on the basis of statement of one Rajesh, copy of which is on record at page 59 of the paper book. According to the learned counsel for applicant his statement is based upon hearsay evidence inasmuch as he is neither an eye-witness of the occurrence nor an eye-witness of the last seen. On the above premise, the learned counsel for applicant contends that applicant is liable to be enlarged on bail.
9. It is next contended that co-accused Sanjay Yadav and Anshul Kumar Yadav have already been enlarged on bail. The details of the same are as under :-
10. Criminal Misc. Bail Application 13428 of 2023 (Sanjay Yadav and another Vs. State of U.P.) was allowed vide order dated 29.05.2023. For ready reference same is extracted hereinunder:-
"1. Learned counsel for the applicant submits that bail application of applicant No.2 Brijesh Yadav @ Lauaa may be dismissed as not pressed with liberty to file a fresh application in accordance with law.
2. The bail application on behalf of applicant No.2 Brijesh Yadav @ Lauaa is dismissed with aforesaid liberty.
3. Heard learned counsel for the applicant no.1 Sanjay Yadav, learned A.G.A for the State and perused the record.
4. The present bail application has been filed by the applicant-accused in Case Crime No.253 of 2022, under Sections 147, 149, 302 I.P.C., Police Station Jaswantnagar, District Etawah with the prayer to enlarge the applicant-accused on bail.
5. It has been argued by learned counsel for the applicant-accused that applicant-accused is innocent and he has been falsely implicated in this case. Applicant-accused is not named in first information report. The involvement of applicant has been shown on the basis of statement of alleged witness Rajesh Kasyap, who has inter-alia stated that co-accused Brijesh Yadav @ Lauaa along with applicant Sanjay Yadav, co-accused Ashish Yadav, Jitendra Yadav, Ravi Yadav @ Rocky Karu Yadav have followed the deceased on motorcycle and assaulted him. Learned counsel submitted that no motive at all has been shown on the part of applicant to indulge in the alleged incident. The applicant-accused has been falsely implicated in this case merely because he is brother of co-accused Brijesh Yadav @ Lauaa. No recovery of any weapon or any other incriminating article has been made from applicant-accused. Referring to statements of witnesses, it was submitted that no specific role has been assigned to the applicant. It has been further submitted that similarly placed co-accused persons, namely, Jitendra Yadav and Ravi Yadav @ Rocky have already been enlarged on bail by co-ordinate Benches of this Court, the copies of orders of which, are available on record. Lastly, it has been submitted that the applicant-accused is languishing in jail since 27.06.2022, having no criminal history, and that in case the applicant-accused is released on bail, he will not misuse the liberty of bail and will co-operate in trial.
6. Learned A.G.A. has opposed the prayer for bail, however, it has not been disputed that similarly placed co-accused persons, namely, Jitendra Yadav and Ravi Yadav @ Rocky have already been granted bail.
7. Considering the submissions of learned counsel for the parties, nature of accusations, period of custody and all attending facts and circumstances of the case, without expressing any opinion on the merits of the case, the Court is of the view that a case for bail is made out. Hence, the bail application is hereby allowed.
8. Let the applicant-accused Sanjay Yadav involved in aforesaid crime be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions:
(i) The applicant-accused shall not tamper with the evidence during the trial.
(ii) The applicant-accused shall not pressurize/ intimidate the prosecution witness.
(iii) The applicant-accused shall appear before the trial court on the date fixed, unless personal presence is exempted.
(iv) The applicant-accused shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.
(v) The applicant-accused shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or to any police officer or tamper with the evidence.
9. In case of breach of any of the above condition, the Court concerned shall be at liberty to cancel bail of applicant-accused in accordance with law."
11. Criminal Misc. Bail Application 13585 of 2023 (Anshul Kumar Yadav Vs. State of U.P.) was allowed vide order dated 01.06.2023. For ready reference same is extracted hereinunder:-
"??????? ??????? ???????? ????? ????????? ????, ????? ????? ????? ???? ?? ?? ?? ????????253/2022, ??????? ???? 147/ 149/ 302 ????????, ???? ????????, ???? ????? ??? ????? ?? ????? ???? ???? ???????? ???? ??? ???
????? ?? ??????? ???????? ??? ??????? ??? ?????? ???????? ?? ???? ??? ???????? ?? ??????? ?????
????? ?? ??????? ???????? ?? ???? ???????? ???? ?? ????? ?? ?? ?????? ??? ???? ?????? ??? ??, ???? ???? ????? ????? ???? ???? ??, ????? ????? ????? ??????? ??? ????? ?? ???? ??? ?????? ??????? ??? ???? ?? ??? ?? ???????? ?????? ???? ??? ?? ?????? ??? ?? ???????? ???????? ?? ?????, ????? ????? ???? ??. 103 ?? 2023 ??? ?? ???????? ?? ??? ???????? ?? ???? ??. 02.02.2023 ?????? ??????? ?? ?? ???? ?? ??? ?? ?????? ??? ?? ???????? ??? ???? ???? ???? ?? ?????, ????? ????? ???? ??. 466 ?? 2023 ??? ?? ???????? ?? ??? ???????? ?? ???? ??. 15.02.2023 ?????? ??????? ?? ?? ???? ??? ????? ?? ??? ?? ???? ?????????? ?? ???? ??, ????? ????? ?? ?? ???????? ?? ?????? ?? ???? ?? ????? ???? ?? ??????? ??? ????? ??????? ?? ??? ?? ?? ?????? ??? ??? 27.06.2022 ?? ??????? ??? ??????? ?? ????? ????? ?? ????? ?? ???? ???? ????
??????? ??? ?????? ???????? ?? ????? ?? ??????? ???????? ?? ????? ?? ????? ????? ???? ??? ???? ???????? ???? ?? ????? ?????? ????? ????? ??????? ??? ?????? ??????? ?? ??, ????? ????? ?? ????? ?? ? ????? ?????
????? ?? ??????? ???????? ?? ?????? ?? ???????????? ??? ???????? ?? ?????? ?????? ?????? ??? ???????????? ?? ????? ??? ?? ?????? ??? ?? ???, ?????? ?? ??????? ?? ???? ?? ??? ?????????? ??????? ?? ?????????? ??? ?????? ??????? ?? ???????? ?? ??????? ? ???? ?? ???? ?? ????? ??? ???? ??? ??? ????? ?? ????? ?? ????? ???? ?? ??????? ???? ???
??? ??? ?? ???-??? ?? ???? ??? ??????? ??? ??? ????? ?? ??????? ?????? ????? ??? ??????? ???????? ?? ???????? ?? ????????? ???-???? ??? ???? ?????? ?? ?? ??????? ??????? ???????? ???? ?? ?????????? ?????? ?? ??? ????? ?? ???? ???? ????
1- ????? ??????? ?? ??????? ?? ????? ??????? ????????? ?? ??? ???????? ???? ??????
2- ????? ??????? ????????? ? ??????/??????????? ?? ???????/???????? ?????
3- ????? ???????? ?? ?????? ?? ???? ?????, ?? ??????? ?? ????? ???? ??? ???????? ????? ??? ???? ???? ?? ???????? ??? ??????? ???? ??? ??????? ??? ???????? ?? ????? ??????
4- ????? ????? ?? ???? ???? ?? ??? ????? ?? ?????????? ?? ???????? ???? ????? ?? ???? ?? ??????? ??????? ??? ????? ???? ???? ? ??? ??????? ????? ??????
5- ????? ????????? ??? ?? ????? ?? ?????? ?? ?????? ???? ?? ??????? ?? ????? ?????????? ?? ??? ??????? ?? ???? ???? ???? ? ?? ???? ??? ????? ?????, ????? ???? ?????? ???????? ??? ????? ?? ????? ???? ?? ???? ???? ?????
??????? ?????? ??? ?? ???? ?? ??????? ?? ????? ???, ??????? ???????? ????? ?? ????? ?????????? ???? ???? ?? ???????? ???"
12. One of the co-accused namely X who is minor has also been enlarged on bail vide order dated 22.03.2023 passed in Criminal Revision No. 4783 of 2022 (X Vs. State of U.P. and Another). For ready reference same is extracted hereinunder:-
"1. Heard Sri Kuldeep Singh Yadav, learned counsel for the revisionist, Sri Sanjay Mishra, learned counsel for the opposite party no. 2 and Sri Ghanshyam Kesarwani, learned A.G.A. for the State and perused the material available on record.
2. The Present Criminal Revision has been preferred by the revisionist through his father under Section 102 of The Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as "JJ Act, 2015") against the judgment dated 15.10.2022 passed by Additional Sessions Judge/Special Judge (POCSO Act), Etawah in Criminal Appeal No. 61 of 2022, whereby the appellate court has rejected the Criminal appeal and affirmed the order dated 21.09.2022 passed by Juvenile Justice Board, Etawah. The Juvenile Justice Board has rejected the bail application of the revisionist, which has been filed by his natural guardian/father, under Section 12 of "JJ Act, 2015" in Misc. Case No. 83 of 2022 arising out of Case Crime No. 253 of 2022, under Sections 302, 147, 149 of the Indian Penal Code (in short "I.P.C."), Police Station- Jaswant Nagar, District- Etawah.
3. Learned counsel for the revisionist submits that the revisionist was 17 years, 29 days old at the time of the incident. As per educational certificate, the Juvenile Justice Board declared the revisionist as juvenile vide order dated 20.09.2022 and no proceeding is pending against the order.
4. Learned counsel for the revisionist submits that the revisionist is innocent and has been falsely implicated in the present case due to ulterior motive. It is further submitted that the first information report has been lodged against three named persons and unknown person. The revisionist is not named in the first information report. During the course of investigation, the name of the revisionist surfaced on the basis of statement of witness Rajesh Kashyap (uncle of the deceased) and after completing the investigation named co-accused persons have been exonerated by the Investigating Officer. It is further submitted co-accused Jitendra Yadav, Ravi Yadav and Rockey have been granted bail by Coordinate Bench of this Court. It is further submitted that the revisionist has no previous criminal history. The revisionist is in protective custody in an observation home since 26.07.2022.
5. It is further submitted that the finding recorded by the court below is against the social information report and is based on surmises and conjectures. It has been further submitted that there is no evidence to show that if the revisionist is released on bail, his 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. No such findings were recorded as to how he will come in contact with known criminals and how he will be exposed to moral, physical, or psychological danger, or that his release would defeat the ends of justice.
6. Learned counsel for the revisionist further submits that the revisionist has no criminal antecedent to his credit except the present case and is not a previous convict nor is he associated with any kind of unsocial or criminal activities. There is no report regarding any previous criminal antecedents of the family of the revisionist. The natural guardian/father of the revisionist has given an undertaking that if the revisionist is released on bail, he will keep him in his custody and look after him properly and has assured on behalf of the juvenile that he is ready to cooperate with the process of law and shall faithfully make the juvenile available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit.
7. It has been further submitted that the Juvenile Justice Board as well as the Appellate Court have not appreciated the Social Information Report of the Probation Officer in its right perspective and passed the impugned judgment and order in a cursory manner without considering the position of law and have declined bail to the revisionist. The bare perusal of the impugned orders demonstrates that the same has been passed on flimsy grounds, which have occasioned a gross miscarriage of justice. The judgment and order passed by the learned court below are illegal, contrary to law, and is based on the erroneous assumption of facts and law.
8. Per contra; learned A.G.A. for the State defended the impugned judgment and order passed by the Appellate Court as well as the Juvenile Justice Board and contended that the revisionist has committed a heinous crime. Considering the gravity of the offence, the present criminal revision is liable to be dismissed.
9. I have carefully considered the submissions made by the learned counsel for the revisionist, learned counsel for the opposite party no. 2 and learned A.G.A. for the State and perused the material on record.
10. The bail application under Section 12 of "JJ Act, 2015" has been rejected by the Juvenile Justice Board vide order dated 21.09.2022 observing that there appears a reasonable ground for believing that the guardian of the juvenile has no effective control over the revisionist and there is a possibility of re-occurrence of the offence after his release. Furthermore, he has committed the heinous offence and indulged in this activity due to lack of discipline. The appellate court has also affirmed the order passed by the Juvenile Justice Board. The appellate court without considering the social information report of the Probation Officer in its right perspective as well as without returning any finding on the three exceptions declined the bail to the revisionist and rejected the appeal after observing that the parents of the juvenile are unable to keep the juvenile under control. There is a lack of availability of a consultant and if the juvenile is released on bail, he is likely to go into association with known criminals.
11. To examine the validity of the impugned order, it is useful to note the relevant provisions of the Act as well as the case laws relating to the subject.
12. It is a settled position of law that the use of the word 'shall' in sub-section (1) of Section 12 of "JJ Act, 2015" is of great significance. The use of the word 'shall' raises a presumption that the particular provision is imperative, but this prima facie inference may be rebutted by other considerations such as the object and scope of the enactment and the consequences flowing from such construction. The word 'shall' has been construed as ordinarily mandatory, but is sometimes not so interpreted if the context or intention otherwise demands.
13. Provisions of Section 12 of "JJ Act, 2015" manifest that ordinarily, the Juvenile Justice Board is under obligation to release the juvenile on bail with or without surety. The juvenile shall not be released in certain circumstances as the latter part of the section also uses the word 'shall' imposing certain mandatory conditions prohibiting the release of the juvenile by the Juvenile Justice Board. If there are any reasonable grounds for believing; (a) that the release is likely to bring him into association with any known criminal; (b) that release is likely to expose him to moral, physical, or psychological danger and (c) that release of the juvenile is in conflict with law and would defeat the ends of justice.
14. From a bare reading of the provisions of Section 12 of "JJ Act, 2015", it appears that the intention of the legislature is to grant bail to the juvenile irrespective of the nature or gravity of the offence alleged to have been committed by the juvenile, and bail can be declined only in such cases where there are reasonable grounds to believe that the release is likely to bring the juvenile 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. The gravity of the offence is not a relevant consideration for declining the bail to the juvenile. A juvenile can be denied the concession of bail if any of the three contingencies specified under Section 12(1) of "JJ Act, 2015" is available. A similar view has been taken in cases of Manoj Singh v. State of Rajasthan1, Lal Chand v. State of Rajasthan2, Prakash v. State of Rajasthan3, Udaibhan Singh @ Bablu Singh v. State of Rajasthan4, Shiv Kumar @ Sadhu v. State of U.P.5, Maroof v. State of U.P.6.
15. The term 'known criminal' has not been defined in "the Juvenile Justice Act" or Rules framed thereunder. It is a well-settled rule of interpretation that in the absence of any statutory definition of any term used in any particular statute the same must be assigned meaning as in commonly understood in the context of such statute as held by Supreme Court in Appasaheb v. State of Maharashtra, (2007) 9 SCC 721 in para 11 as under: (SCC p. 726 para 11) "11......It is well settled principle of interpretation of statute that if the Act is passed with reference to a particular trade, business or transaction and words are used which everybody conversant with that trade, business or transaction knows or understand to have a particular meaning in it, then the words are to be construed as having that particular meaning. [See: Union of India v. Garware Nylons Ltd., (1996) 10 SCC 413: AIR 1996 SC 3509 and Chemical and Fibers of India v. Union of India, (1997) 2 SCC 664: AIR 1997 SC 558]..."
16. In Nand Kishore (in JC) v. State (2006) 4 RCR (Cri.) 754, Delhi High Court, while considering the first condition of proviso of Section 12 of Juvenile Justice Act, observed that "as regards the first exception, before it can be invoked to deny bail to a juvenile there must be a reasonable ground for believing that his release is likely to bring him into association with any known criminal. The expression known criminal is not without significance when the liberty of a juvenile is sought to be curtailed by employing the exception, the exception must be construed strictly. Therefore, before this exception is invoked, the prosecution must identify the 'known criminal', and then the court must have reasonable grounds to believe that the juvenile if released would associate with this 'known criminal'. It cannot be generally observed that the release of the juvenile would bring him into association with criminals without identifying the criminals and without returning a prima facie finding with regard to the nexus between the juvenile and such criminal."
17. Similar view has been taken in Manmohan Singh v. State of Punjab, PLR (2004) 136 P & H 497 wherein, it was observed as under:
"7....The reasonable grounds for believing that his release is likely to bring 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, should be based upon some material/evidence available on the record. It is not a matter of subjective satisfaction but while declining bail to the juvenile on the said ground, there must be objective assessment of the reasonable grounds that the release of the juvenile is likely to bring him in association with any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice...
8. In Sanjay Kumar's case (supra) it has been held by the Allahabad High Court that every juvenile whatever offence he is charged with, shall be released on bail but he may, however, be refused bail if there appears reasonable ground for believing that the release is likely to bring him into association with the any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice and that the existence of such ground should not be mere guess work of court but it should be substantiated by some evidence on record."
18. Section 26 of the IPC defines the expression "Reason to believe". It means a person is said to have a "reason to believe" a thing, if he has sufficient cause to believe such thing but not otherwise. In view of Section 26 of I.P.C., if there is sufficient cause to believe, reason to believe exists. The expression "reason to believe" excludes a mere suspicion. The word 'believe' is very much a stronger word than 'suspect'.
19. Section 13(1)(ii) of "JJ Act, 2015" provides that the Probation Officer shall submit a social investigation report within two weeks from when a child is apprehended or brought to the Board, containing information regarding the antecedents and family background of the child and other material circumstances likely to be of assistance to the Board for making the inquiry. The "social investigation report" which has been defined in Rule 2(xvii) of The Juvenile Justice (Care and Protection of Children) Model Rules, 2016, means the report of a child containing detailed information pertaining to the circumstances of the child, the situation of the child on economic, social, psycho-social and other relevant factors, and the recommendation thereon. This report becomes important for the inquiry to be done by the Board while passing such orders in relation to such a child as it deems fit under Sections 17 and 18 of this Act. The purpose behind this provision is to enable the Juvenile Justice Board to get a glimpse of the social circumstances of the child before any order regarding bail or of any other nature is passed.
20. 'Form-6' of The Juvenile Justice (Care and Protection of Children) Model Rules, 2016, contains a detailed proforma of the social investigation report. The report has three parts; the first part requires the Probation Officer to give the data or information regarding the close relatives in the family, delinquency records of the family, social and economic status, ethical code of the family, attitude towards religion, the relationship amongst the family members, the relationship with the parents, living conditions, etc. Thereafter, the report requires the Probation Officer to provide the child's history regarding his mental condition, physical condition, habits, interests, personality traits, neighbourhood, neighbours' report, and school, employment, if any, friends, the child being subject to any form of abuse, circumstances of apprehension of the child, mental condition of the child. The most important part of the report is the third part i.e. the result of inquiry where the Probation Officer is required to inform the Board about the emotional factors, physical condition, intelligence, social and economic factors, suggestive cause of the problems, analysis of the case including reasons/contributing factors for the offence, opinion of experts consulted and recommendation regarding rehabilitation by the Probation Officer/Child Welfare Officer. It is incumbent upon the Juvenile Justice Board to take into consideration the social investigation report and make an objective assessment on the reasonable grounds for rejecting the bail application of the juvenile.
21. Section 3 of "JJ Act, 2015" provides that the Central Government, the State Government, the Board, and other agencies, as the case may be, while implementing the provisions of the Act, shall be guided by the fundamental principles of care and protection of children. Some of the principles are as under:
(i) Principle of presumption of innocence: Any child shall be presumed to be an innocent of any mala-fide or criminal intent up to the age of eighteen years.
(ii) Principle of dignity and worth: All human being shall be treated with equal dignity and rights.
(iii) Principle of best interest: All decisions regarding the child shall be based on the primary consideration that they are in the best interest of the child and to help the child to develop full potential.
(iv) Principle of family responsibility: The primary responsibility of care, nurture and protection of the child shall be that of the biological family or adoptive or foster parents, as the case may be.
(v) Principle of non-stigmatising semantics: Adversarial or accusatory words are not to be used in the process pertaining to a child.
(vi) Principle of right to privacy and confidentiality: Every child shall have a right to protection of his privacy and confidentiality, by all means and through out the judicial process.
22. After noticing the position of law, now I revert back to the facts of the present case. The Social Information Report (SIR), demonstrates that the revisionist has passed Class VI. His younger brother aged about 5 years. His younger sister aged about 12 years is studying in Class XI. His grandfather aged about 85 years and has passed Class V and he is retired Army Officer. His grandmother aged about 80 years and she is illiterate. His father aged about 35 years and has passed Class X and his mother aged about 33 years and she is illiterate. His father is an agriculturist and his mother is a housewife; relations among the family members are cordial; parents of the juvenile have no criminal antecedent. The SIR further noted that the discipline in the house of the juvenile is moderate. Lack of parental control over the juvenile was found.
23. The first information report was lodged on 23.06.2022 has been lodged by uncle of the deceased against three named and unknown person stating that on 22.06.2022 at about 07:00 P.M., the nephew of the first informant, aged about 20 years assaulted by danda by the named accused persons and an unknown person near the road, when he was going on a motorcycle, due to which he fell on the road. He has sustained grievous injuries in this incident. Some local persons brought his nephew to CHC Jaswantnagar, where the doctor declared him dead on 22.06.2022. The named accused persons brought his nephew from his house at 06 P.M. and they assaulted near Padarpura. The revisionist is not named in the first information report, the name of the revisionist has been surfaced on the basis of statement of witness Rajesh Kashyap (uncle of the deceased) and after completing the investigation named co-accused persons have been exonerated by the Investigating Officer.
24. In view of the above foregoing discussion, I am not satisfied with the reasoning and conclusion of the Appellate Court as well as the Juvenile Justice Board in the impugned judgment and order. The Juvenile Justice Board as well as the Appellate Court have not properly appreciated the mandatory provisions of Section 12 of "JJ Act, 2015" as well as other provisions in relation to juvenile 'X' and have declined to grant bail merely on the basis of unfounded apprehension. In the absence of any material or evidence of reasonable grounds, it cannot be said that his release would defeat the ends of justice and have failed to give reasons on three contingencies for declining the bail to the revisionist. The findings recorded by the Juvenile Justice Board as well as the Appellate Court are based on the heinousness of the offence, therefore, the order dated 21.09.2022 passed by the Juvenile Justice Board and judgment dated 15.10.2022 passed by the Appellate Court are not sustainable. Hence, the above-mentioned orders are set aside and the present criminal revision is allowed.
25. Let the revisionist, aged about 17 years, 29 days old, who is in observation home since 26.07.2022 be released on bail via assurance and surety given by his natural guardian/father, in Case Crime No. 253 of 2022, under Sections 302, 147, 149 of the I.P.C., Police Station- Jaswant Nagar, District- Etawah, after furnishing a personal bond on his father (Ramvaresh Yadav) with two sureties of his relatives each in the like amount to the satisfaction of Juvenile Justice Board, Etawah, subject to the following conditions:
(i) Natural guardian/father will furnish an undertaking that upon release on bail the revisionist will not be permitted to go into contact or association with any known criminal or allowed to be exposed to any moral, physical, or psychological danger and further that the father will ensure that the juvenile will not repeat the offence.
(ii) Natural guardian/father will further furnish an undertaking to the effect that the juvenile will pursue his study at the appropriate level which he would be encouraged to do besides other constructive activities and not be allowed to waste his time in unproductive and excessive recreational pursuits.
(iii) Juvenile and natural guardian/father will report to the Probation Officer on the first Monday of every calendar month commencing with the first Monday of April 2023, and if during any calendar month the first Monday falls on a holiday, then on the following working day.
(iv) The Probation Officer will keep a strict vigil on the activities of the juvenile and regularly draw up his social investigation report that would be submitted to the Juvenile Justice Board, Etawah, on such a periodical basis as the Juvenile Justice Board may determine.
26. Before imparting the judgment, it is necessary to point out that the identity of the juvenile in the present matter has been disclosed in the impugned judgment and order which violates the right to privacy and confidentiality of the juvenile and against the law laid down by the Supreme Court in Shilpa Mittal v. NCT Delhi, (2020) 2 SCC 787 wherein, it was held that the identity of the juvenile shall not be disclosed.
27. The present revision has been filed by the revisionist through his natural guardian/father. The memo of parties discloses the name of the juvenile. The Registry is directed to conceal the names of the juvenile from the cause list as well as the record of this case so that the names and identities are not disclosed as directed by the Supreme Court in Shilpa Mittal (supra)."
13. On the above premise, the learned counsel for applicant contends that the case of present applicant is similar and identical to aforementioned co-accused who have already been enlarged on bail. There is no such distinguishing feature on the basis of which the case of present applicant could be so distinguished from aforementioned bailed out co-accused so as to deny him bail. He therefore submits that in view of above and for the facts and reasons recorded in the bail orders of aforementioned co-accused, applicant is also liable to be enlarged on bail on the ground of parity.
14. Even otherwise, applicant is a man of clean antecedents having no criminal history to his credit. However, one criminal case under Section 504, 506 I.P.C. has been registered against applicant, subsequent to the occurrence giving rise to the present criminal proceedings. On the above premise, he submits that irrespective of the said fact that another criminal case has been registered against applicant yet that by itself is not so sufficient a circumstances so as to deny bail to the applicant. Applicant is in jail since 27.06.2023. As such, he has undergone more than five months of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted, therefore, the entire evidence sought to be relied upon by the prosecution against applicant now stands crystallized. Upto this stage, no such circumstance has emerged necessitating the custodial arrest of the applicant during the course of trial. He therefore contends that applicant is liable to be enlarged on bail. In case, the applicant is enlarged on bail he shall not misuse the liberty of bail and shall co-operate with the trial.
15. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since applicant is a charge sheeted accused, therefore, he does not deserve any indulgence by this Court. However, the learned A.G.A. could not dislodge the factual/legal submissions urged by the learned counsel for applicant with reference to the record at this stage.
16. Having heard, the learned counsel for applicant, the learned A.G.A. for State, upon perusal of record, evidence, nature and gravity of offence, complicity of accused and accusation made coupled with the fact that applicant is not named in the F.I.R., present case is a case of circumstantial evidence, therefore, there is no eye-witness of the occurrence, complicity of an accused in a case based upon circumstantial evidence has to inferred in accordance with the parameters laid down by the Apex Court in Sharad Birdhichand Sarda Vs. State of Maharashtra 1984 AIR 1622, however, upto this stage none of the parameters laid down in aforesaid judgment are satisfied against applicant, no recovery has been made from the applicant not there is any evidence of last seen against the applicant, no motive has emerged against applicant for committing the crime in question, motive is an important link in the chain of circumstances in a case based on circumstantial evidence, the judgment of the Supreme Court in Nandu Singh Vs. State of M.P. 2022 SCC Online SC 1434, the applicant has been implicated in the crime in question on the basis of statement of one Rajesh, copy of which is on record at page 59 of the paper book, however, the said witness is not an eye-witness as such his statement is based upon hearsay evidence, the learned A.G.A. could not point out any distinguishing feature in the case of the present applicant so as to distinguish his case from other named/charge sheeted but bailed out co-accused so as to deny him bail, inspite of the fact that the charge sheet has been submitted, the learned A.G.A. could not point out any such circumstance from the record necessitating the custodial arrest of applicant during the pendency of trial, the clean antecedents of applicant, the period of incarceration undergone, therefore, irrespective of the objections raised by the learned A.G.A. in opposition to the present application for bail, but without making any comment on the merits of the case, applicant has made out a case for bail.
17. Accordingly, the bail application is allowed.
18. Let the applicant- Brijesh Yadav @ Lauaa, be released on bail in aforesaid case crime number on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-
(i) THE APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE FIXED FOR EVIDENCE WHEN THE WITNESSES ARE PRESENT IN COURT. IN CASE OF DEFAULT OF THIS CONDITION, IT SHALL BE OPEN FOR THE TRIAL COURT TO TREAT IT AS ABUSE OF LIBERTY OF BAIL AND PASS ORDERS IN ACCORDANCE WITH LAW.
(ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.
(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIM/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.
(iv) THE APPLICANT SHALL REMAIN PRESENT, IN PERSON, BEFORE THE TRIAL COURT ON DATES FIXED FOR (1) OPENING OF THE CASE, (2) FRAMING OF CHARGE AND (3) RECORDING OF STATEMENT UNDER SECTION 313 CR.P.C. IF IN THE OPINION OF THE TRIAL COURT ABSENCE OF THE APPLICANT IS DELIBERATE OR WITHOUT SUFFICIENT CAUSE, THEN IT SHALL BE OPEN FOR THE TRIAL COURT TO TREAT SUCH DEFAULT AS ABUSE OF LIBERTY OF BAIL AND PROCEED AGAINST THE HIM/HER IN ACCORDANCE WITH LAW.
(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.
19. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this Court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.
Order Date :- 24.11.2023 Imtiyaz