Allahabad High Court
Dileep Kumar (Juvenile) vs State Of U.P. And Another on 26 August, 2020
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 66 Case :- CRIMINAL REVISION No. - 3054 of 2019 Revisionist :- Dileep Kumar (Juvenile) Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Abhishe Pandey,Subhash Chandra Yadav, Vijay Kumar Tiwari Counsel for Opposite Party :- G.A.,Sushil Kumar Sharma Hon'ble J.J. Munir,J.
1. This Revision, under Section 102 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short, ''the Act') is directed against a judgment of Sri Vivek Sangal, Additional Sessions Judge, Court no.1, Azamgarh, dated 21.06.2019 in Criminal Appeal no.20 of 2019, dismissing the Appeal and affirming an order dated 30.03.2019 passed by the Juvenile Justice Board, Azamgarh, declining bail to the revisionist in Case Crime no.235 of 2018, under Sections 147, 148, 304, 323, 506 IPC, Police Station Bardah, District Azamgarh.
2. Heard Sri Subhash Chandra Yadav, learned Counsel for the revisionist and the learned A.G.A. appearing for the State. Though, Sri Sushil Kumar Sharma, learned Advocate has put in appearance on behalf of opposite party no.2, but when the case is called on, no one appears on behalf of the said opposite party.
3. The prosecution case as set out in the FIR is to the effect that the informant's cousin's wife, Sunita had gone out into the open on 19.10.2018 at about 8.45 p.m. to answer the call of nature when Lalmani son of Ramjeet, Kishan son of Lalmani, Awadhesh son of Ramjeet, Dileep son of Nand Kumar (the revisionist), Roshan son of Balak Singh and others, who are the informant's co-sharers, with a common intention assaulted Sunita with sticks (lathi and danda) and dagger (katari). Upon hearing the ensuing commotion, the informant's brother, Sant Lal, his uncle Jogi and aunt, Pyari, rushed to Sunita's rescue. The assailants assaulted the rescuers, in consequence whereof, Sant Lal, whose condition was serious, was rushed to the P.H.C., Barda. No Doctor being found there, he was taken to the Jaunpur Sadar Hospital, where the Doctors declared him dead.
4. The revisionist has been held to be a minor, aged 17 years, 2 months and 9 days vide order dated 27.03.2019 passed by the Juvenile Justice Board. He applied for bail to the Board, who rejected his bail application by the order impugned dated 30.03.2019. The revisionist carried Criminal Appeal no.20 of 2019 to the learned Sessions Judge, which came up for determination before the learned Additional Sessions Judge, Court no.1, Azamgarh on 21.06.2019. The learned Judge, by means of his impugned judgment and order, has dismissed the said Appeal. Disillusioned by the two orders declining bail, this Revision has been filed.
5. Learned Counsel for the revisionist has drawn the attention of the Court to the statement of Smt. Sunita wife of Sundar, who is admittedly an eye-witness. It is pointed out that Sunita has assigned the role of assault with the sharp edged weapon (katari) to co-accused Lalmani, who is said to have grievously injured Sant Lal. It is emphasized that in the postmortem report dated 20.10.2018 relating to the deceased, Sant Lal, the cause of death assigned is antemortem head injury. Learned Counsel submits that the fatal blow employing the sharp edged weapon has been assigned to co-accused Lalmani, whereas no specific role with reference to a particular weapon has been identified for the revisionist by eye witness account. Learned Counsel emphasizes that co-accused, Lalmani, who has been assigned the primal role in the assault, has been admitted to bail by this Court vide order dated 22.07.2019 passed in Criminal Misc. Bail Application no.29012 of 2019. Likewise, another co-accused, Awadhesh has been granted bail by an order of this Court dated 27.03.2019 in Criminal Misc. Bail Application no.12231 of 2019.
6. It is impressed upon this Court that in a case where the revisionist has a role similar to or lesser than the two adult co-accused, Lalmani and Awadhesh there is no justification to refuse bail to him.
7. Learned A.G.A. has opposed the bail plea and submits that the Appellate Court on a very detailed consideration of facts relevant to the grant of bail to a juvenile has not found the revisionist's case fit for bail. The Courts below have concurrently opined that the revisionist in this case is not entitled to bail, on all the three disentitling criteria postulated under Section 12(1) of the Act.
8. This Court has perused the orders impugned and the relevant record. It is evident that the primal role of assault with a sharp edged weapon has been assigned to co-accused, Lalmani. The other co-accused, Awadhesh, is more or less circumstanced as the revisionist, against whom there are general allegations of participating in the battery. A perusal of the bail order passed in the case of co-accused, Awadhesh, indicates that there is some cross-version also, where both sides appear to have sustained injuries.
9. Be it as it may, this Court is of opinion that for a principle it is both, discriminatory and unfair to refuse bail to a juvenile, where an adult offender, identically circumstanced or worse placed is admitted to bail. In a case of this kind, to subject the juvenile's case to further scrutiny on the parameters postulated under Section 12(1) of the Act would be contrary to the spirit of Section 12 of the Act, besides being an interpretation of that provision that would render it vulnerable to a challenge on grounds of discrimination. The purpose of Section 12 is to ensure bail to a juvenile, in a case where an adult offender would not be entitled to bail. Therefore, in a case where a co-accused, similarly circumstanced or worse placed, is found entitled to bail, the special provisions relating to bail for a juvenile, under Section 12 of the Act, read with Sections 15 and 18, would not come into play at all. A juvenile's case is to be decided on the parameters of Section 12, read with Sections 15 and 18 of the Act, where the complicity of the juvenile is prima facie found and if he were an adult, would not be entitled to bail. The present is a case where this Court does not wish to say anything about the revisionist's complicity. But, it is surely a case where the revisionist, if he were an adult, would be entitled to release on bail; if nothing else, on the foot of parity. There is no principle by which under such circumstances the revisionist's case requires further scrutiny with reference to the provisions of Section 12(1) of the Act. It is also pointed out that the revisionist has by now done two months short of two years in institutional incarceration. The impugned orders, therefore, cannot be sustained and deserve to be set aside in the interest of justice.
10. In the result, this revision succeeds and is allowed. The impugned order dated 21.06.2019 passed by the Additional Sessions Judge, Court no.1, Azamgarh in Criminal Appeal No.20 of 2019 and the order dated 30.03.2019 passed by the Juvenile Justice Board, Azamgarh in Case Crime no.235 of 2018, under Sections 147, 148, 304, 323, 506 IPC, Police Station Bardah, District Azamgarh, are hereby set aside and reversed. The bail application of the revisionist stands allowed.
11. Let the revisionist, Dileep Kumar, through his natural guardian/ mother Smt. Shusela w/o Nand Kumar, be released on bail in Case Crime no.235 of 2018, under Sections 147, 148, 304, 323, 506 IPC, Police Station Bardah, District Azamgarh upon his 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, Azamgarh subject to the following conditions:
(i) that the natural guardian/ mother Smt. Shuseela 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 father will ensure that the juvenile will not repeat the offence.
(ii) The revisionist and his mother, Smt. Shuseela will report to the District Probation Officer on the first Monday of every calendar month commencing with the second Monday of September, 2020 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, Azamgarh on such periodical basis as the Juvenile Justice Board may determine.
(iv) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
(v) The computer generated copy of such order shall be self attested by the counsel of the party concerned.
(vi) The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 26.8.2020 Anoop/ BKM