Allahabad High Court
Shivam @ Shubham Minor vs State Of U.P. And Another on 4 December, 2019
Equivalent citations: AIRONLINE 2019 ALL 2138
Author: Rajendra Kumar-Iv
Bench: Rajendra Kumar-Iv
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 80 Case :- CRIMINAL REVISION No. - 121 of 2018 Revisionist :- Shivam @ Shubham Minor Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Saral Singh,Jitendra Kumar Shishodia,Rekha Pundir,Sunil Kumar Yadav Counsel for Opposite Party :- G.A.,Sunil Kumar Srivastava Hon'ble Rajendra Kumar-IV,J.
1. Heard Sri Jitendra Kumar Shishodia, learned counsel for revisionist, Sri Padmakar Pandey holding brief of Sri Sunil Kumar Srivastava, learned counsel for private respondent and Sri DN Tiwari, learned AGA for State.
2. Present Criminal Revision has been filed by Shivam@Shubham, Juvenile-revisionist, challenging the impugned judgment and order dated 10.11.2017, passed by Additional Sessions Judge, Court No.8, Saharanpur and order dated 26.8.2017, passed by Juvenile Justice Board, Saharanpur. Both the Courts below dismissed the bail of Juvenile.
3. Bail application of Juvenile-revisionist, involved in Crime No. 8 of 2016, under Sections 393 and 302 IPC, Police Station - Janakpuri, District - Saharanpur, has been rejected by Juvenile Justice Board, Saharanpur, vide order dated 26.8.2017.
Appeal there-against has also been dismissed by Additional Sessions Judge, Court No.8, Saharanpur, in Criminal Appeal No. 36 of 2017, vide its judgment and order dated 10.11.2017.
4. Brief facts of the present case are that on 15.1.2016, at about 5:30 pm, victim-Kiran Gandhi was alone in the house. Two accused-persons including present revisionist, concealing their faces with cloth and Helmet, entered in her house with knife; pushed victim inside and asked her to handover Jewellery and money kept in the house, showing knife but when she raised alarm they stabbed her with intention to take life, due to which, she sustained serious knife injuries. On hearing the noise of Kiran Gandhi, Informant came getting down from stairs. Annu, Ravi Gandhi, Surendra, Arun, Sanjay and some other persons of same locality came there. Both the miscreants tried to run away but applicant-revisionist was arrested on the spot and another accused-Mukul made a good escape with knife and other looted materials. Motorcycle belonged to accused was also found standing on the spot. Victim succumbed to death. FIR was lodged in Police Station concerned by Vipin Gandhi as Case Crime No. 8 of 2016 under Sections 393 and 302 IPC.
5. Learned counsel for Juvenile-revisionist submits that he has been falsely implicated in the present case; nothing has been recovered from the possession of Juvenile-revisionist; he was servant of Informant; there was some dispute regarding payment of salary, therefore, he has been falsely implicated in the present case. It is further submitted by learned counsel for Juvenile-revisionist that applicant-revisionist, at the time of incident, has been declared Juvenile by Juvenile Justice Board; his age was found, at the time of incident, 17 years 6 months. Order declaring him Juvenile is final and he is in Jail since 17.1.2016 having no criminal history; Juvenile Justice Board and Appellate Court did not pass the order rejecting the bail as per law; revisionist was arrested on the spot. It is further submitted that due to heavy pendency of case, there is no possibility of early disposal of trial/inquiry.
6. Per contra, learned AGA for State as well as learned counsel for Opposite Party No.2-Informant opposed the revision and submitted that applicant-revisionist is named in the FIR. As per postmortem report, Injury No.7 was found in the chest of deceased, due to which, death occurred. He was servant of Informant. Juvenile-revisionist along with another co-accused entered the house with knife in order to committing robbery; they stabbed victim-Smt. Kiran Gandhi, who received serious injury and succumbed to death; juvenile has betrayed his boss, therefore, no sympathy is required and his revision may kindly be dismissed.
7. Section 12 of The Juvenile Justice (Care and Protection of Children) Act, 2000 is a provision dealing with bail for juvenile, which is as under : -
"Section 12 - Bail of juvenile :- (1) When any person accused of a bailable or non-bailable offence, and apparently a juvenile, is arrested or detained or appears or is 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 institution of fit person but he shall not be so released if there appear 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.
(2) When such person having been arrested is not released on bail under sub-section (1) by the officer incharge of the police station, such officer shall cause him to be kept only in an observation home in the prescribed manner until he can be brought before a Board.
(3) When such person is not released on bail under sub-section (1) by the Board it shall, instead of committing him to prison, make an order sending him to an observation home or a place of safety for such period during the pendency of the inquiry regarding him as may be specified in the order."
8. In Virendra v. State of Uttar Pradesh, 2014 (6) ADJ 694, Court said as under :-
"14. In fact, society has always been sensitive towards offence against the women. Experience shows that minor eve teasing has led to large scale violence even communal riots. Therefore, while considering the prayer for bail, court has to see whether release would not expose juvenile to the danger of retribution by the society. In cases of rape with child, such a possibility always exists.
15. Where victim is a child, court would do well in refusing to exercise discretion vested under Section 12 of the Act.
16. Bail can also be refused on the ground that release would defeat the ends of justice. 'Ends of justice' has been interpreted by the courts in different manners. No universal formula can be laid down but justice to society as a whole has to be borne in mind while interpreting ends of justice.
17. In the case of Machhi Singh Vs. State of Punjab [(1983) 3 SCC 470], it has been found to be an aggravating factor "When the victim of murder is (a) an innocent child who could not have or has not provided even an excuse, much less a provocation, for murder. (b) a helpless woman or a person rendered helpless by old age or infirmity (c) when the victim is a person vis-a vis whom the murder is in a position of domination or trust".
18. Ends of justice is converse of injustice. Prevention or remedying injustice would always be in the ends of justice. It has been stated in 84th Report of the Law Commission that 'Acquittal of many of facto guilty rapists adds to the sense of injustice'
19. Hon'ble Apex Court in the case of State of Punjab Vs. Gurmit Singh and others [(1996) 2 SCC 384] made following observations while dealing with a raped victim:-
"Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. it is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical harm in the process. Rape is not merely a physical assault - it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused on charges of rape."
20. In a recent judgment given in the case of Om Prakash Vs. State of Rajasthan and another [(2012) 5 SCC 201], Hon'ble Apex Court 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. Relevant extract of the judgment made in Paras-3, 22 and 23 are being reproduced below for reference:-
"3. The 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. ....."
"22. ......But when an accused commits a grave and heinous offence and thereafter attempts to take statutory shelter under the guise of being a minor, a casual or cavalier approach while recording as to whether an accused is a juvenile or not cannot be permitted as the courts are enjoined upon to perform their duties with the object of protecting the confidence of common man in the institution entrusted with the administration of justice."
"23. Hence, while the courts must be sensitive in dealing with the juvenile who is involved in cases of serious nature like sexual molestation, rape, gang rape, murder and host of other offences, the accused cannot be allowed to abuse the statutory protection by attempting to prove himself as a minor ......."
In para-33 of the judgment, Court observed that 'statutory protection of the Juvenile Justice Act is meant for minors who are innocent law-breakers and not accused of matured mind who use the plea of minority as a ploy or shield to protect himself from the sentence of the offence committed by him, otherwise would amount to subverting the course of justice'.
In para-38 of the judgment, Hon'ble Court observed that this would clearly be treated as an effort to weaken the justice dispensation system. Para-38 of the judgment is being reproduced below:-
"38. The Juvenile Justice Act which is certainly meant to treat a child accused with care and sensitivity offering him a chance to reform and settle into the mainstream of society, the same cannot be allowed to be used as a ploy to dupe the course of justice while conducting trial and treatment of heinous offences. This would clearly be treated as an effort to weaken the justice dispensation system and hence cannot be encouraged."
21. While dealing with the case of TADA reported in JT 2013 (6) SC 1 (Essa @ Anjum Abdul Razak Memon (A-3) Vs. The State of Maharashtra, through STF, CBI Mumbai), Hon'ble Apex Court has observed in Paras-376 and 377 while interpreting words "ends of justice" occurring in Section 12 of the Act as under:-
"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 & Ors. v. S.K. Sharma, [JT 1996 (3) SC 722 : AIR 1996 SC 1669]; and Mahadev Govind Gharge & Ors. v. The Special Land Acquisition Officer, Upper Krishna Project, Jamkhandi, Karnataka, [JT 2011 (6) SC 321 : (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."
22. The act of rape shows the depravity of mind. What is not decent or obscene, is immoral. Rape cannot be treated to be an act which can be dubbed as a child's mistake committed during youthhood or adolescence. It is an act motivated with passion to ravish somebody's modesty.
23. Ends of justice has not been defined under the Act but anything that militates against the justice would result in defeating the ends of justice. These days such crimes committed against minor girls are rampant. Society demands that guilty should be brought to justice and severe punishment should be imposed. Any interpretation taking a liberal consideration in such matters would definitely result in defeating the ends of justice. As observed earlier rape followed by murder may be 'rarest of rare case' and it is definitely an aggrevating factor which shows the depraved and perverted mind set, as such this Court is of the opinion that granting bail to such accused would defeat the ends of justice.
24. 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.
25. Rape/murder of a helpless and innocent child has been treated an aggravating factor, as held in the Machhi Singh's case (supra). While gravity of the offence cannot be considered under Section 12 of the Act but where rape is committed with helpless victim, a child followed by the murder, cruel mentality of the author is more than manifest. Murder was committed to save himself from the clutches of justice. Discretion of bail to such a person will obviously tantamount subverting the course of justice and by no stretch of imagination it can be said that it will be in ends of justice to grant bail to such a person.
26. Consequently, the offence like rape with child followed by murder, anti-national/sedition, Drug trafficking and other similar acts etc. would be the offences which reflect the criminal mind-set of the offender, as such, any discretion under Section 12 of the Act to such a person would amount to defeating the ends of justice.
27. Granting bail to such a juvenile will not only expose him to moral, physical and psychological danger but would also lead to defeat of the ends of justice.
28. After all victim, a child, also needs justice for whose need and care Act has been enacted. Such offences are crimes against society and society feeling desperate and outraged, too needs justice. Thus, justice has to be ensured to both author vis-a-vis victim and society. Section 12 of the Act while empowers court to grant bail to juvenile, it specifically puts a rider which is couched in negative. Court would be failing in its duty in not giving due weightage to the above caveat.
29. From the above, it is apparent that aim of the Act is to take care of both child in conflict with law as well as child who need care and protection, as such, Section 12 of the Act cannot be interpreted in a manner so as to give advantage to only juvenile in conflict with law ignoring the need or welfare of the victim child. On a general power to grant bail, specific rider has been placed which is very often forgotten. Such a rider has been placed in Act, 1986 and in some other laws. While considering the prayer for bail under Section 12 of the Act, the Judge has to ensure that the order proposed to be passed does not violate any of the conditions contemplated by Section 12 of the Act. It cannot be interpreted to work only for the benefit of juvenile ignoring the cries of victim child whenever, a child becomes victim of offences, let alone heinous offences like murder or rape, society craves and cries for justice. By showing misplaced sympathy to juvenile, who has perpetrated offence like rape/murder, victim (child) and the society is denied justice which is not and cannot be the intention of law.
30. In view of above, juvenile is not entitled to bail under Section 302 and 376 I.P.C. Consequently, no error has been committed by Sessions Judge in rejecting the bail.
31. In view of the discussion made above, I do not find any error in the impugned order. Consequently, revision is liable to be dismissed.
32. Revision is accordingly dismissed. Registrar General of this Court to circulate copy of this judgment to all the Sessions Judges of State."
9. In view of above, revision lacks merit and is, accordingly, dismissed.
10. However, it is provided that Trial Court shall expedite and conclude the trial within one year from the date of production of certified copy of this order without granting unnecessary adjournment, if there is no legal impediment.
Order Date :- 4.12.2019 Akram