Allahabad High Court
Hashim vs State Of U.P. on 10 October, 2017
Author: Prabhat Chandra Tripathi
Bench: Prabhat Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 17 Case :- CRIMINAL REVISION No. - 1244 of 2016 Revisionist :- Hashim Opposite Party :- State Of U.P. Counsel for Revisionist :- A.C.Srivastava Counsel for Opposite Party :- G.A.,Vikash Chandra Tiwari Hon'ble Prabhat Chandra Tripathi,J
1. Heard Sri A.C. Srivastava, learned counsel for the revisionist, Sri Vikash Chandra Tiwari, learned counsel for the opposite party no.2 and learned A.G.A. for the State and perused the record.
2. Learned counsel for the revisionist has filed following Rulings:-
"1. Om Prakash Vs. State of Rajasthan and Anr.[Criminal Appeal No.651 of 2012 (Arising out of S.L.P. (Crl.) No.2411/2011)], decided on April 13, 2012.
2. Amit Yadav Alias Monu Alias Bebo Vs. State of U.P. and Another (Criminal Revision No.1398 of 2015), decided on 22.1.2016.
3. Amit Vs. State of U.P. and Another (Criminal Revision No.1852 of 2015), decided on 16.3.2016.
4. Ajay @ Abhinay Kumar (Juvenile) Vs. State of U.P. (Criminal Revision No.3408 of 2014), decided on 30.3.2015.
5. Ravi Vs. State of U.P. and Another (Criminal Revision No.3312 of 2013), decided on 8.5.2015.
6. Girijesh Vs. State of U.P. and Anr 2015 LawSuit (All) 893, date of decision 15 April, 2015.
7. Parsum @ Rajesh Gupta Vs. State of U.P. & Another 2015 LawSuit (All) 870, date of decision 15 April, 2015."
3. The present criminal revision has been filed against the judgement and order dated 15.3.2016 passed by the learned Principal Magistrate, Juvenile Justice Board, Ghaziabad in case crime no.378 of 2015 (State Vs. Hasim), under Sections 364A, 120B Indian Penal Code, Police Station Masoori, District Ghaziabad whereby the learned Principal Magistrate, Juvenile Justice Board, Ghaziabad has rejected the bail application of Hashim (juvenile) son of Ashraf.
4. Aggrieved by the order dated 15.3.2016 of the Principal Magistrate, Juvenile Justice Board, Ghaziabad, a Criminal Appeal Number 23 of 2006 (Hasim Vs. State) was preferred on behalf of the juvenile through his father and natural guardian Ashraf before the court of the learned Additional District and Sessions Judge, Court Room No.1, Ghaziabad. The court of the learned Additional District and Sessions Judge, Court Room No.1, Ghaziabad vide its order dated 7.4.2016 has rejected the said appeal and confirmed the aforementioned order dated 15.3.2016 passed by the learned Principal Magistrate, Juvenile Justice Board, Ghaziabad.
5. Learned counsel for the revisionist has submitted that the order dated 15.3.2016 passed by the Principal Magistrate, Juvenile Justice Board, Ghaziabad and also the order passed by the learned Additional District and Sessions Judge, Court Room No.1, Ghaziabad dated 7.4.2016 are wrong, illegal and can not be sustained in the eyes of law. Learned counsel for the revisionist has also argued that the revisionist is in judicial custody since last 2 years and 5 months.
6. The above-mentioned orders passed by the learned Principal Magistrate, Juvenile Justice Board, Ghaziabad and the learned Additional District and Sessions Judge, Court Room No.1, Ghaziabad did not consider the report of the District Probation Officer which had mentioned that the revisionist was a student of class IX and he possessed positive attitude towards the school and also took interest in playing and had good relationship with his parents and conduct of his family was found satisfactory. It has been nowhere observed that there was no possibility of juvenile of coming in contact with anti-social elements or known criminals if he would be released on bail.
7. Learned A.G.A. appearing on behalf of the opposite party no.1 State of U.P. has vehemently opposed the bail application.
8. Learned A.G.A. has indicated towards paragraph nos. 6, 7, 8, 11 and 12 of the counter affidavit in which it has been mentioned that the age of kidnapped child was about 4 years. The present revisionist Hashim (juvenile) had actively participated in the offence in question and he was arrested alongwith co-accused persons and ransom amount to the tune of Rs.7 lakhs was also recovered from his possession. Moreover, the revisionist was arrested on the spot at the time of recovery of kidnapped minor child alongwith ransom amount of Rs.7 lakhs was also recovered from his possession alongwith other co-accused persons.
9. I have gone through the Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015. The relevant portion of Section 12 of the Act is quoted verbatim as follows:-
"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."
10. In the context, I have also gone through the following judgments of this Court as well as of the Apex Court:
"1. Monu @ Moni @ Rahul @ Rohit Vs. State of U.P., 2011 (61) ACR 2582.
2. Mohit Vs. State of U.P. and another, 2013 (83) ALLCC, 242.
3. Virendra Vs. State of U.P., 2015 (1) ACR 629.
4. Shabbir Vs. State of U.P. and others, 2015 (88) ALLCC 161.
5. Sonu Tomar Vs. State of U.P., 2015 (2) ACR 2284.
6. Amit Yadav Vs. State of U.P. and others, 2016 (93) ALLCC 571."
11. The Apex Court in the case of Om Prakash Vs. State of Rajasthan and another, (2012) 5 SCC 201 has cautioned the Courts to be more sensitive in dealing with juvenile in cases of serious nature like sexual molestation, rape, gang-rape murder etc. The relevant extract of the said judgment in paragraphs 3 and 23 are being reproduced below in reference:-
"3. Juvenile Justice Act was enacted with a laudable object of providing a separate forum or a special court for holding trial of children/juvenile by the juvenile court as it was felt that children become delinquent by force of circumstance and not by choice and hence they need to be treated with care and sensitivity while dealing and trying cases involving criminal offence. But when an accused is alleged to have committed a heinous offence like rape and murder or any other grave offence when he ceased to be a child on attaining the age of 18 years, but seeks protection of the Juvenile Justice Act under the ostensible plea of being a minor, should such an accused be allowed to be tried by a juvenile court or should he be referred to a competent court of criminal jurisdiction where the trial of other adult persons are held.
23. ....Similarly, if the conduct of an accused or the method and manner of commission of the offence indicates an evil and a well planned design of the accused committing the offence which indicates more towards the matured skill of an accused than that of an innocent child, then in the absence of reliable documentary evidence in support of the age of the accused, medical evidence indicating that the accused was a major cannot be allowed to be ignored taking shelter of the principle of benevolent legislation like the Juvenile Justice Act, subverting the course of justice as statutory protection of the Juvenile Justice Act is meant for minors who are innocent law breakers and not accused of matured mind who uses the plea of minority as a ploy or shield to protect himself from the sentence of the offence committed by him."
12. In the order dated 7.4.2016 learned Additional District and Sessions Judge, Court Room No.1, Ghaziabad it has been vividly mentioned that according to the report of the District Probation Officer, the juvenile in conflict with law; is a student of class X. It has been mentioned in the report that the alleged incident took place due to company of juvenile with his cousin. It has also been mentioned in the report that prior to this alleged incident the juvenile in conflict with law was in bad company and it required a strict control for rectification of his conduct so that juvenile in conflict with law may not again come into the contact of known criminals.
13. According to the written F.I.R. filed by the informant Abdul Gafur before the Station Officer, Police Station Masoori, District Ghaziabad that on 5.5.2015 at about 7:00 P.M. (evening) his son Adnan was going from his shop Lovely Sweets House situated in the main market of Dasana but could not reach home. An information regarding that was given at about 12:00 O' Clock in the night at Police Station and on that date at 1:47 hours a call came from Mobile No.9259595380 to the informant's Mobile No.9313954092 which telephonically informed that his son was in their safe custody and demanded ransom money of Rs.15 lakhs only to take his son.
14. After the completion of the investigation, a charge-sheet was submitted by the Police in case crime no.364A and 120B I.P.C. against three accused persons and also juvenile in conflict with law Hashim (revisionist).
15. The rider of the 'person's release would defeat the ends of justice' requires attention.
16. The 'juvenile in conflict with law' does not entitle him to be released on bail solely on the ground of his juvenility. The juvenile offenders who have criminal tendencies and have inclination and attraction to commit crime "at the drop of a hat", should be segregated and should not be integrated to set the shield of this benevolent legislation. It is of paramount importance to up-keep and safeguard the larger interest of the society. Due to this, exception to the rule of bail to a juvenile has also been included. A too liberal interpretation in the matters related to ghastly crimes would definitely result in defeating the ends of justice.
17. The relevant extract of the judgment in Virendra Vs. State of U.P., 2015 (1) ACR 629 para 23 is quoted below:-
"23. A citizen's claim to equality before the law is a claim of justice. Justice has been termed as the highest virtue. It has also been equated with fairness. Fairness connotes fairness to all i.e. equal treatment to all. Sense of injustice is a powerful human emotion. It is strongest when a person's own interests are harmed, but it also aroused in civilized people when they witness wrongs done to others. Ultimate object of every legal system is to secure justice which is at the centre of moral and social philosophy. The instinct for justice leads us to believe that right, and not might, is the true basis of society. The principles of justice that define duties and rights should be neutral with respect to compacting conception of good life. Defeat of ends of justice is bound to result in injustice which produces conflict within the individual and sets him at variance with himself and with all who are just. Injustice is inseparable from virtue which consist of ethics and justice in universal sense. Injustice in the particular sense is the injustice that causes harm to others. Virtue based approach connects justice to reflection about good life. This approach ensures that justice means giving people what they morally deserve-allocating goods to reward and promote virtue. It is thus apparent that the concept of justice lies at the heart of moral philosophy where righteousness, fairness and truth are the basic values and it should include people from all walks of life. Therefore, it is safe to conclude that wellbeing of the community takes precedence over the liberty and preventing injustice would always be a pursuit of justice. Leaving society to live with persons of perverted nature would be an affront to the dignity of human beings and tends to promote anarchy and unrest in society which is sure to defeat the ends of justice."
18. It would not be out of context to cite the paragraphs 376 and 377 of the extract of the judgment of the Apex Court in the case of Essa @ Anjum Abdul Razak Memon (A-3) and others Vs. The State of Maharashtra, through STF, CBI Mumbai and others, JT 2013 (6) SC1, which are quoted below:
"376. While dealing with such an issue, the court must not lose sight of the fact that meaning of "ends of justice" essentially refers to justice to all the parties. This phrase refers to the best interest of the public within the four corners of the statute. In fact, it means preservation of proper balance between the Constitutional/Statutory rights of an individual and rights of the people at large to have the law enforced. The "ends of justice" does not mean vague and indeterminate notions of justice, but justice according to the law of the land. (vide: State Bank of Patiala and others v. S.K. Sharma, MANU/SC/0438/1996: AIR 1996 SC 1669; and Mahadev Govind Gharge and others v. The Special Land Acquisition Officer, Upper Krishna Project, Jamkhandi, Karnataka, MANU/SC/ 0597/2011: (2011) 6 SCC 321).
377. Thus, the law has to be interpreted in such a manner that it develops coherently in accordance with the principles, so as to serve, even-handedly, the ends of justice."
19. In revision under Section 397 Cr.P.C., the revisional court cannot analyze and interfere in the findings of fact of the lower courts and appellate jurisdiction is not available to the revisional court to interfere in the findings of fact recorded by the courts below.
20. In view of the above discussions, the impugned orders show that the courts below have considered the correctness, legality and propriety of the matter and did not act with any irregularity at the time of giving findings of fact relating to revisionist.
21. There is no illegality, perversity or infirmity in the impugned orders. The revision lacks merits and is liable to be dismissed.
22. The revision is, accordingly, dismissed.
Order Date :- 10.10.2017 S.Sharma