Allahabad High Court
Sumit Kumar vs State Of U.P. And Another on 13 April, 2018
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 53 A.F.R. Case :- CRIMINAL REVISION No. - 915 of 2017 Revisionist :- Sumit Kumar Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Kumar Vinay Singh Counsel for Opposite Party :- G.A.,Santosh Kukmar Tiwari Hon'ble J.J. Munir,J.
1. Heard Sri Kumar Vinay Singh, learned counsel for the revisionist, Sri Saqib Meezan, learned A.G.A. appearing on behalf of the State and Sri Sunil Kumar Tripathi, Advocate holding brief of Sri Santosh Kumar Tiwari, learned counsel for the opposite party no.2.
2. This revision is directed against an order of Sri Malkhan Singh, learned Additional Sessions Judge, Court no.6, Allahabad dated 02.03.2017 passed in Criminal Appeal No.24 of 2017 dismissing the said appeal and affirming an order dated 10.01.2017 passed by the Juvenile Justice Board, Allahabad refusing bail to the revisionist in Case Crime No.201 of 2016, under Sections 363, 364 IPC, Police Station Kydganj, District Allahabad.
3. The case of the prosecution is that the first informant Lalji Sonkar lodged a First Information Report on 31.05.2016 at 1.30 AM with Police Station Kydganj, District Allahabad saying that he is a resident of House no.614, Krishna Nagar, Kydganj, Allahabad; that his grandson Priyanshu aged about 11 years had come a visiting him; that on 30.05.2016 at 9.00 AM his grandson had gone along with Ankit Kumar Mishra, Akash Chauhan and Sumit Kumar (revisionist), but had not returned ever since; that all efforts to privately trace out the missing did not lead to any result and the informant apprehended that some untoward incident might have befallen him; and, that accordingly he was lodging a report with the police for necessary action. On the basis of aforesaid information the First Information Report giving rise to the present crime was registered.
4. The revisionist was declared a juvenile/ a child in conflict with law by an order of the Juvenile Justice Board dated 09.12.2016. He made an application seeking bail pending trial to the Juvenile Justice Board. The Juvenile Justice Board looked into the social investigation report submitted by the District Probation Officer and observed that according to the said report there is resentment and indignation in the neighbourhood over the activities of the juvenile and that his education should be regulated which may encourage his development. The Board also observed that the report says that it is not desirable to place him in the environment of his family. The Board further went into the police papers submitted in relation to the case against the juvenile and held that he stands charged with kidnapping, the minor victim. It is recorded that the victim still remains traceless. The Board held that it appears that the guardians had no effective control over the juvenile; and that in case he was given into the custody of his guardian, there was a likelihood of a repetition of crime by him. Looking to the nature of the crime, the Board observed that it appears that the guardian of the juvenile did not have control over him and that there is likelihood of the child falling into bad company. In addition, it was observed that releasing him on bail would defeat the ends of justice. Referring to certain decisions of this Court, the Board rejected the bail plea.
5. On appeal the Appellate Court took into account the provisions of Section 12(1) of the Act and the three parameters on which in exception to the rule of grant of bail to a juvenile an order of denial of bail could be made. The learned Additional Sessions Judge did a little more probe into the social investigation report and recorded a finding that the said report says that looking to the young age of the juvenile, there were chances of the child in conflict with the law falling into bad company, and, there was also apprehension of exposure of the child to moral and psychological danger. It was noticed that from the neighbours, there were conflicting responses. The learned Judge has held that the age of the child was little over 14 years and looking to his age, in case of release on bail in the custody of his father and natural guardian, Anil Kumar, there were chances of repetition of crime, a still more heinous one, as he would go back to the same kind of atmosphere, where from he had come, which, in turn, would lead to a failure of justice. The Appellate Court has held in rather cryptic terms - as much cryptic as the Juvenile Justice Board have been in their judgment that looking to the facts and evidence on record the order passed by the Juvenile Justice Board is sound on facts and law and does not suffer from any infirmity. It has been added that the Juvenile Justice Board has evaluated material on record in accordance with law to reach the sound conclusion to deny bail which does not call for interference in appeal. The appeal has come to be dismissed by the order impugned dated 02.03.2017.
6. Hence, the present revision has been brought.
7. The parameters for assessment of plea for bail of a juvenile are spelt out by Section 12 of the Act that reads as under:-
"12. Bail to a person who is apparently a child alleged tobe 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.
(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 fulfil 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."
8. On undisputed fact, the age of the revisionist has been determined by the Juvenile Justice Board to be 14 years, 9 months 16 days on the date of occurrence, reckoned on the basis of findings that his date of birth is 14.08.2001. There is no quarrel about that finding.
9. It has been emphasized by the learned counsel for the revisionist that the revisionist is in jail since 06.12.2016, that is to say, a period of almost a year and a half by now.
10. In the opinion of the Court the general rule in case of a child in conflict with law is to grant him bail subject, of course, to the three distinct exceptions enumerated in the proviso to Section 12(1) of the Act. The first of the two exceptions can be best assessed on the basis of the social investigation report submitted by the District Probation Officer. It would be profitable to look into the said report in order to assess tenability of the plea of the revisionist. Assessed on first of the two prescribed parameters, where bail can be denied, a copy of the social investigation report is on record as Annexure 7 to the affidavit filed in support of the affidavit. A perusal of the report says that the juvenile has a father at home aged about 50 years, whose occupation is agriculture; he has mother aged about 45 years, who is a homemaker; he also has a brother and a sister. It is indicated that he reposes general faith in religion and the family have a general and usual inclination towards religion. The social status of the family was found to be usual, but financial conditions, a bit strugglesome. The present circumstances of life were found to be average; relationship between the mother and father was found to be average, amiable and peaceful; likewise, the relationship between the mother and father on the one hand and the children on the other was also found to be average and amiable; the habits and hobbies were found to be interest in watching TV, outdoor games and other kind of entertainment; the impact of friends and their influence over the juvenile was reported to be negative; there was no history of running away from home, and, likewise, no history of previous delinquency was found. The outlook of the juvenile towards school, which includes his teachers and classmates, was found to be average and normal. In the column as to report about neighbours of the juvenile, it is said that in relation to the juvenile there was resentment and indignation over the incident (giving rise to the present crime). The perspective of the parents towards discipline and responsibility of the child were found to be usual. The causes for the problems of the child has been indicated to be absence of appropriate guidance, bad company and absence of appropriate family atmosphere. The District Probation Officer along with the Legal Assistant Probation Officer have, in their joint recommendation, reported as follows:-
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11. A perusal of the social investigation report shows that the report of the District Probation Officer and his companion officer have apparently written out a report which reflects a clear lack of enquiry into the true state of affairs. It is more a formality than a substantial input on the basis of which opinion might be framed by the Board seized of the bail plea or for other purposes. The report does not mention at all as to who are the friends who could have an influence on the child as mentioned in the relevant column. It mentions as causes for the alleged delinquency, the bad company of the child and absence of suitable family atmosphere, but there is no mention of particulars of that bad company with reference to individuals, instances of that bad company or how the family atmosphere is not suitable. Elsewhere, atmosphere of the family has been shown to be suitable as relationship between the parents inter-se and their children shown to be amiable. The inference from this kind of a social investigation report to be drawn is that there is really nothing against the revisionist, on the basis of which his bail could be refused on the first of the two parameters laid down by the proviso to Section 12(1) of the Act, that is to say, on ground that release on bail is likely to bring him in association of any known criminal or release is likely to expose him to moral, physical or psychological danger.
12. In the opinion of this Court, denial of bail to the child on that ground is misplaced and the opinion of the courts below to the contrary is ex facie fallacious, manifestly illegal and not based on any material on record.
13. Turning to the third parameter, where bail may be denied is the ground that release of the child would defeat the ends of justice. It may be observed that this category is designed to restrict the liberty of a juvenile, who by the enormity of his crime, its impact on society or maturity of mind reflected in his criminal action has placed himself in a position where grant of bail to him would be subversive of justice. In this context, somewhere the parameters of a prima facie case against a child and the nature of his acts, all become relevant like in any plea for bail by an adult though not strictu sensu the assessment of his bail plea on merits. This parameter has always been much in debate under the Act of 2000 because the preponderance of authority under that Act was in favour of excluding any consideration of merits of the charge or the prima facie case against a juvenile/ a child in conflict with law. But under the old Act too it is said in a number of decisions including that of the Hon'ble Supreme Court, that where offences are heinous like rape, murder, gang rape and the like, the nature and gravity of the offence would be relevant. In such cases the juvenile cannot get away by shielding himself behind the veil of minority. In this connection the decision of their Lordships of the Supreme Court in the case of Om Prakash vs. State of Rajasthan and another, (2012) 5 SCC 201: 2012 (2) ACR 1825 (SC), has most eloquently held thus:-
"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."
14. Likewise is the decision under the Act of 2000 in Monu @ Moni @ Rahul @ Rohit v. State of U.P., 2011 (74) ACC 353, where it has been held:-
"14. Aforesaid section no where ordains that bail to a juvenile is a must in all cases as it can be denied for the reasons"......if there appears reasonable grounds for believing that the 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."
15. In the light of above statutory provision bail prayer of the juvenile revisionist has to be considered on the surrounding facts and circumstances. Merely by declaration of being a juvenile does not entitle a juvenile in conflict with law to be released on bail as a matter of right. The Act has a solemn purpose to achieve betterment of juvenile offenders but it is not a shelter home for those juvenile offenders who have got criminal proclivities and a criminal psychology. It has a reformative approach but does not completely shun retributive theory. Legislature has preserved larger interest of society even in cases of bail to a juvenile. The Act seeks to achieve moral physical and psychological betterment of juvenile offender and therefore if, it is found that the ends of justice will be defeated or that goal desired by the legislature can be achieved by detaining a juvenile offender in a juvenile home, bail can be denied to him. This is perceptible from phraseology of section 12 itself. Legislature in its wisdom has therefore carved out exceptions to the rule of bail to a juvenile."
15. The provisions as to bail under the Act have been considered by me in a recent decision in Mangesh Rajbhar Vs. State Of U.P. & Another, Criminal Revision No.4009 of 2017, decided on 09.04.2018. In the said decision this Court while dealing with last parameter in the proviso to Section 12(1) of the Act on which bail may be denied, read the provisions of Chapter IV of the Act as part of a integrated scheme that have to be taken into consideration while dealing with the bail plea of the child in conflict with law opining thus:
"27. It seems thus that the suggestion of the learned counsel for the revisionist that bail to a juvenile or more properly called a child in conflict with law can be denied under the last ground of the proviso to Section 12 ejusdem generis with the first two and not with reference to the gravity of the offence, does not appear to be tenable. The gravity of the offence is certainly relevant though not decisive. It is this relevance amongst other factors where gravity of the offence committed works and serves as a guide to grant or refuse bail in conjunction with other relevant factors to refuse bail on the last ground mentioned in the proviso to Section 12 (1) of the Act, that is to say, on ground that release would "defeat the ends of justice".
28. Under the Act, as it now stands there is further guidance much more than what was available under the Act, 2000 carried in the provisions of Section 15 and 18 above extracted and the definition of certain terms used in those sections. A reading of Section 18 of the Act shows that the case of a child below the age of 16 years, who has committed a heinous crime as defined in the Act is made a class apart from cases of petty offence or the serious offence committed by a child in conflict with the law/juvenile of any age, and, it is further provided that various orders that may be made by the Board as spelt out under clause (g) of Section 15 depending on nature of the offences, specifically the need for supervision or intervention based on circumstances as brought out in the social investigation report and past conduct of the child. Though orders under Section 18 are concerned with final orders to be made while dealing with the case of a juvenile, the same certainly can serve as a guide to the exercise of power to grant bail to a juvenile under Section 12(1) of the Act which is to be exercised by the Board in the first instance.
29. Read in the context of the fine classification of juveniles based on age vis-a-vis the nature of the offence committed by them and reference to a specifically needed supervision or intervention, the circumstances brought out in the social investigation report and past conduct of the child which the Board may take into consideration, while passing final orders under Section 18 of the Act it is, in the opinion of this court, a good guide for the Board while exercising powers to grant bail to go by the same principles though embodied in Section 18 of the Act, when dealing with a case under the last part of the proviso to Section 12 (1) that authorizes the Board to deny bail on ground that release of the juvenile would "defeat the ends of justice."
30. Thus, it is no ultimate rule that a juvenile below the age of 16 years has to be granted bail and can be denied the privilege only on the first two of the grounds mentioned in the proviso, that is to say, likelihood of the juvenile on release being likely to be brought in association with any known criminal or in consequence of being released exposure of the juvenile to moral, physical or psychological danger. It can be equally refused on the ground that releasing a juvenile, that includes a juvenile below 16 years would "defeat the ends of justice." In the opinion of this Court the words "defeat the ends of justice" employed in the proviso to Section 12 of the Act postulate as one of the relevant consideration, the nature and gravity of the offence though not the only consideration in applying the aforesaid part of the disentitling legislative edict. Other factors such as the specific need for supervision or intervention, circumstances as brought out in the social investigation report and past conduct of the child would also be relevant that are spoken of under Section 18 of the Act.
31. In this context Section 12 and 18 and also Section15 (Section 15 not relevant in the case of a child below 16 years) and other relevant provisions all of which find place in Chapter IV of the Act are part of an integrated scheme. The power to grant bail to a juvenile under Section 12(1) cannot be exercised divorced from the other provisions or as the learned counsel for the revisionist argues on the other specific disentitling provisions in the grounds mentioned in the proviso to Section 12(1) of the Act. The submission made based on the rule of ejusdem generis urged by the learned counsel for the revisionist is misplaced, in the opinion of this Court."
16. Seen in the context of the above legal position, the case of the revisionist though falls in the category of a heinous offence and is certainly one which endangers the safety and security of children in society, but at the same time it is a case where the child in conflict with law stands charged with an offence where nothing has been proved so far. The prima facie complicity of the revisionist in the crime has not at all been looked into as a factor to assess whether releasing him on bail would defeat the ends of justice. From what appears on record it is a case of circumstantial evidence, where the only evidence is that of last seen. Before the courts below or before this Court no further circumstance to connect the revisionist to the crime has been brought on record, like recovery of anything related to the victim. The social investigation report on the other hand does not show that the past conduct of the child is in any manner such where he has been involved in any crime or that he requires supervision in a Child Protection Home away from his family. It is further to be considered that the child has already suffered incarceration of about one and a half years in whatever kind of custody, and, the maximum period for which he could be confined is three years. He has done half of the said period that he would have undergone even if found guilty.
17. Considering the entire facts as aforesaid, this Court finds that both the courts below are in error in not taking into consideration all these factors before opting to deny bail to the revisionist. The orders impugned, therefore, cannot be sustained.
18. In the result, this revision succeeds and is allowed. The impugned order dated 02.03.2017 passed by the learned Additional Sessions Judge, Court no.6, Allahabad in Criminal Appeal No.24 of 2017 and the order dated 10.01.2017 passed by the Juvenile Justice Board, Allahabad in Case Crime No.201 of 2016, under Sections 363, 364 IPC, Police Station Kydganj, District Allahabad, are hereby set aside and reversed. The bail application made on behalf of the revisionist through his father stands allowed.
19. Let the revisionist, Sumit Kumar through his natural guardian/ father Anil Kumar be released on bail in Case Crime No.201 of 2016, under Sections 363, 364 IPC, Police Station Kydganj, District Allahabad through his father furnishing a personal bond with two solvent sureties of his relatives each in the like amount to the satisfaction of the Juvenile Justice Board, Allahabad subject to the following conditions:
(i) that the natural guardian/father Anil Kumar will furnish an undertaking that upon release on bail the juvenile will not be permitted to go into contact or association with any known criminal or expose to any morale, physical, danger and further that the father will ensure that the juvenile will not repeat the offence.
(ii) that the father will further furnish an undertaking to the effect that the juvenile be placed in a school and encouraged to his studies and not allowed to waste his time in unproductive and mere recreational persuades.
(iii) The revisionist and his father Anil Kumar will report to the District Probation Officer once every Monday from the first Monday commencing with the first Monday of May, 2018 and if during any calendar month first Monday falls to a holiday then on the following working day.
(iv)The District Probation Officer will keep strict visit to the activities of the revisionist and regularly draw his social investigation report that would be submitted to the Juvenile Justice Board, Allahabad on such periodical basis as the Juvenile Justice Board chooses.
Order Date :- 13.4.2018 Anoop