Allahabad High Court
X(Minor) vs State Of U.P. And Another on 26 September, 2022
Author: Narendra Kumar Johari
Bench: Narendra Kumar Johari
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 91 Case :- CRIMINAL REVISION No. - 997 of 2022 Revisionist :- X(Minor) Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Satyendra Kumar Mishra Counsel for Opposite Party :- G.A. Hon'ble Narendra Kumar Johari,J.
1. The instant Revision has been filed on behalf of Juvenile through his father/natural guardian against the order dated 24.02.2022 passed by the Addl. District & Sessions Judge/ Special Judge (POCSO Act) (Exclusive Court), Baghpat in Criminal Appeal No.11 of 2022 and order dated 12.01.2022 passed by Juvenile Justice Board, Baghpat in Misc. Case No. 82/2020 arising out of Case Crime No.326/2020, under Sections 302, 34 I.P.C., Police Station- Binauli, District -Baghpat.
2. The record indicates that notice has sufficiently been served on opposite party No.2 but none is present on behalf of the opposite party No.2 today.
3. Heard learned counsel for the revisionist, learned A.G.A. for the State and perused the record.
4. The brief facts of the case are that informant Sachin Rana lodged a first information report in police station concerned vide Crime No. 326 of 2021 under Section 302 IPC with the contention that his brother Vikrant alias Vikki is missing in suspicious condition since 8.11.2020. He had lodged his missing report also on 11.11.2020 in police station Binauli. As a matter of fact, on 8.11.2020, his brother was carried by Nitin Rathi and revisionist from his house at about 12.20 O'clock. His mother is witness. On 12.11.2020, the dead body of the Vikrant had been found in the field of sugar cane. Further informant has suspected that his brother had been killed by Nitin Rathi and Nitin Sharma and revisionist who had called and carried him from his residence.
5. The police arrested the revisionist and produced him before the Juvenile Justice Board, Baghpat. The Juvenile Justice Board, Baghpat vide order dated 10.12.2021 declared the revisionist as Juvenile in conflict with law. Thereafter the revisionist applied for release on bail. The said bail application of the revisionist was rejected by the Board vide order dated 12.1.2022 on the ground that the Junile need the proper care and protection. If he will be released on bail, his physical, moral and psychological development shall be affected adversely. He may indulge in heinous offences and a wrong massage will convey to the society. Against the aforesaid rejection order, the Juvenile approached to the Special Judge, POCSO Act, Baghpat in Criminal Appeal No. 11 of 2022 which too was rejected on the ground that if the Juvenile is released on bail, it will defeat the ends of justice. Both the orders of the Juvenile Justice Board as well as appellate court have been challenged in the present revision.
6. Learned counsel for the revisionist submitted that the revisionist is innocent and he has falsely been implicated in this case. The age determination order of the Juvenile has not been challenged in higher court. The Juvenile is languishing in observation since long back. There is statement of co-accused Nitin Rathi which indicates that the deceased Vikrant was having love affair with the sister of Nithin Rathi. Consequently, he alongwith Juvenile opened fire on him which caused his death. In the post mortem report, only one injury of the fire arm has been found on the body of the deceased. Hence it can not be said who caused the fetal injury. The police has shown the recovery of a country made pistol from the possession of the revisionist which has been planted by police himself. Co-accused Nitin Rathi and Ashish have been released on bail by the coordinate Bench of this Court in Criminal Misc. Bail Application No. 17890 of 2021 and Criminal Misc. Bail Application No. 11320 of 2021 vide orders dated 24.5.2021 and 15.3.2021. The case of the Juvenile is on better footing than co-accused. Revisionist has no criminal history. The District Probation Officer, Baghpat has mentioned in his report that the Juvenile requires propercre and protection. The father of the Juvenile undertakes that he will take care of Juvenile and provide him better environment for his over all development so that he may grow as good citizen of the country. The conclusion drawn by the Juvenile Justice Board as well as appellate court has no base. There is no evidence on record which may lead to inference that the release of Juvenile on bail will defeat the ends of justice or his physical moral and psychological development will be affected adversely.
7. Per contra, learned A.G.A. has contended that considering the nature of offence, the revision petition is liable to be dismissed. The revisionist has committed a heinous offence. If the revisionist is released on bail, the object of law and justice shall be defeated.
8. At the outset, 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.
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."
9. 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.
10. The Act, namely, Juvenile Justice (Care and Protection of Children) Act, 2015 being benevolent and social reforms oriented legislation, should be given full effect by all concerned whenever matters relating to juvenile comes for consideration before them. Therefore, for rejection of his bail application, 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."
The reason to believe means there should be sufficient cause to believe such thing but not otherwise it excludes a mere suspicion. In other words, we may say that the reason means something more than the prima facie ground.
11. The bail of revisionist can not be rejected on the ground that the offence committed by juvenile is heinous and non-bailable in nature.
12. 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."
13. In the light of facts, circumstances and law laid down and fundamental legal principle regarding the juvenile justice, the court has to examine that whether the release of juvenile will expose him to moral, physical and psychological danger and his release on bail would affect the ends of justice.
14. The Juvenile Justice (Care and Protection of Children) Act, 2015 has been enacted by the Parliament, is a reformative and benevolent in nature. Section 3 of the Act, 2015, provides general principles to be followed in administration of the Act.
"Section 3. General Principles to be followed in administration of Act.- The Central Government, the State Governments, the Board, and other agencies, as the case may be, while implementing the provisions of this Act shall be guided by the following fundamental principles, namely:--
(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 beings shall be treated with equal dignity and rights.
(iii) Principle of participation : Every child shall have a right to be heard and to participate in all processes and decisions affecting his interest and the child's views shall be taken into consideration with due regard to the age and maturity of the child.
(iv) 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.
(v) 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.
(vi) Principle of safety: All measures shall be taken to ensure that the child is safe and is not subjected to any harm, abuse or maltreatment while in contact with the care and protection system, and thereafter.
(vii) Positive measures: All resources are to be mobilised including those of family and community, for promoting the well-being, facilitating development of identity and providing an inclusive and enabling environment, to reduce vulnerabilities of children and the need for intervention under this Act.
(viii) Principle of non-stigmatising semantics : Adversarial or accusatory words are not to be used in the processes pertaining to a child.
(ix) Principle of non-waiver of rights: No waiver of any of the right of the child is permissible or valid, whether sought by the child or person acting on behalf of the child, or a Board or a Committee and any non-exercise of a fundamental right shall not amount to waiver.
(x) Principle of equality and non-discrimination: There shall be no discrimination against a child on any grounds including sex, caste, ethnicity, place of birth, disability and equality of access, opportunity and treatment shall be provided to every child. General principles to be followed in administration of Act.
(xi) Principle of right to privacy and confidentiality: Every child shall have a right to protection of his privacy and confidentiality, by all means and throughout the judicial process.
(xii) Principle of institutionalisation as a measure of last resort: A child shall be placed in institutional care as a step of last resort after making a reasonable inquiry.
(xiii) Principle of repatriation and restoration: Every child in the juvenile justice system shall have the right to be re-united with his family at the earliest and to be restored to the same socio-economic and cultural status that he was in, before coming under the purview of this Act, unless such restoration and repatriation is not in his best interest.
(xiv) Principle of fresh start : All past records of any child under the Juvenile Justice system should be erased except in special circumstances.
(xv) Principle of diversion: Measures for dealing with children in conflict with law without resorting to judicial proceedings shall be promoted unless it is in the best interest of the child or the society as a whole.
(xvi) Principles of natural justice: Basic procedural standards of fairness shall be adhered to, including the right to a fair hearing, rule against bias and the right to review, by all persons or bodies, acting in a judicial capacity under this Act."
15. 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."
16. In the case of Rahul Patel Vs. State of U.P. & another, [2018 (1) JIC 357 (All)], this Court has held as under :-
"8. The Apex Court in a catena of judgements has constantly held that gravity of the offence is not a ground to deny bail to a juvenile accused. Unless the conduct of the accused is such to indicate that in all likelihood, after being released on bail, the juvenile-accused will indulge into more crimes. If there are no imminent chances of his repeating the crime, bail to a juvenile should not be ordinarily refused."
17. During enquiry in proceedings before Juvenile Justice Board, District Probation Officer, Baghpat has mentioned that the juvenile needs proper care and rehabilitation.
18. No criminal history of either revisionist or his father has been shown. No material to establish reason to believe has been brought on record. The father of revisionist also undertakes that he will take care for moral, physical and psychological development of his son.
19. Keeping in view the fact of the case, arguments advanced by learned counsel for the parties and legal provisions/law laid down by Apex Court and by this Court, it can be concluded that in present revision no ground is available on record to reject the application of juvenile for bail. Hence, the revision deserves to be allowed. Both the courts below could not appreciate the legal position while rejecting bail application of delinquent juvenile. The revision stands allowed. Consequently, the impugned orders dated order dated 24.02.2022 passed by the Addl. District & Sessions Judge/ Special Judge (POCSO Act) (Exclusive Court), Baghpat in Criminal Appeal No.11 of 2022 (Nitin Sharma @ Haicha Vs. State of U.P.) and order dated 12.01.2022 passed by Juvenile Justice Board, Baghpat in Misc. Case No. 82/2020 (State Vs.Nitin Sharma @ Haicha) arising out of Case Crime No.326/2020, under Sections 302, 34 I.P.C., Police Station- Binauli, District -Baghpat are set aside.
20. 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, Fatehpur with the stipulation that on subsequent dates of hearing, he shall produce the delinquent juvenile before the Board during the pendency of the case. His guardian/father shall also submit an undertaking before the Board that, (i) he shall keep proper control and look after the juvenile, (ii) He will keep away him from the company of known criminals and will do all of his endeavour to improve his better future, (iii) he will take care for moral, physical and psychological development of his son, (iv) the revisionist or his father shall not tamper with the evidence or cause threat to the witnesses. The revisionist through his guardian shall also file undertaking to the effect that he shall not seek an adjournment on the date fixed for evidence when the witnesses are present before the Juvenile Justice Board.
21. 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, Baghpat on such periodical basis as the Juvenile Justice Board determines.
22. In case of default, the Board would be competent to cancel the bail of revisionist after giving opportunity of hearing to him.
Order Date :- 26.9.2022 n.u.